THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


IN  MEMORY  OF 

PROFESSOR 
EUGENE  I.  McCORMAC 


THE    STATE 

ELEMENTS   OF   HISTORICAL  AND 
PRACTICAL  POLITICS 


BY 

WOODROW   WILSON 


SPECIAL   EDITION 
REVISED  TO   DECEMBER,    1918 

BY 

EDWARD   ELLIOTT,   PH.D. 

PROFESSOR    OF    INTERNATIONAL    LAW    AND    POLITICS 
IN    THE    UNIVERSITY    OF    CALIFORNIA 


D.    C.    HEATH   &   CO.,   PUBLISHERS 

BOSTON  NEW  YORK  CHICAGO 

LIBRARY 
UNIVERSITY  OF  TAT  TCV^T>XTTA 


COPYRIGHT,  1898  AND  1918 
BY  WOODKOW  WILSON 


PREFACE 

THE  present  edition  of  The  State  has  been  prepared  for  use  by 
the  Students'  Army  Training  Corps  in  the  study  of  the  govern- 
ments of  the  principal  belligerent  powers ;  to  meet  the  needs  of 
the  course  the  chapters  dealing  with  ancient  Greece,  Borne,  Nor- 
way, and  Sweden  have  been  omitted,  and  new  chapters  on  Italy, 
Belgium,  Serbia,  Rumania,  Bulgaria,  modern  Greece,  Russia, 
Turkey,  and  Japan  have  been  added,  as  has  a  chapter  on  After 
the  War.  The  original  chapters  on  England,  France,  the  United 
States,  Switzerland,  Germany,  and  Austria  have  been  revised. 
In  view  of  the  unsettled  conditions  in  Germany  and  Austria,  the 
governments  of  these  countries  have  been  described  as  they  existed 
in  1914,  and  a  brief  statement  made  of  their  condition  as  it  exists 
as  this  is  written  (December  1,  1918).  The  changes  made  in  the 
revision  have  sought  merely  to  bring  the  work  up  to  date ;  they 
are  relatively  few,  and  the  text  of  the  original  chapters  remains 
for  the  most- part  that  of  the  author,  both  in  language  and  opinion. 
For  the  new  chapters  I  must  assume  full  responsibility. 

It  has  seemed  wise  to  include  in  this  edition  the  chapters  of  a 
general  character,  dealing  with  the  origin,  nature,  functions,  and 
objects  of  government,  and  with  the  nature  of  law.  Though  they 
were  written  thirty  years  ago,  it  is  believed  that  they  represent 
substantially  President  Wilson's  views  to-day.  In  the  new  chap- 
ters I  have  not  indicated  specifically  the  sources  upon  which  I 
have  relied,  nor  can  I  do  more  here  than  make  general  acknowl- 
edgment of  my  indebtedness  to  those  whose  work  has  been  most 
helpful. 

I  wish  to  express  my  appreciation  of  the  aid  given  me  by  my 
colleague,  Dr.  Ludwik  Ehrlich,  who  has  freely  placed  at  my 
service  his  wide  knowledge  of  European  governments  and  in  par- 
ticular of  the  governments  of  Germany  and  Austria. 

EDWARD  ELLIOTT. 
BERKELEY,  CALIFORNIA, 
December  1,  1918. 

iii 


CONTENTS 


CHAPTER  PAOK 

I  EARLIEST  FORMS  OF  GOVERNMENT 1 

II  THE  NATURE  AND  FORMS  OF  GOVERNMENT      ....  26 

III  THE  FUNCTIONS  OF  GOVERNMENT 41 

IV  THE  OBJECTS  OF  GOVERNMENT 68 

V  LAW  —  ITS  NATURE  AND  DEVELOPMENT 69 

VI  POLITY  AND  Go\  i  .i:\  MI  .\  i-<  i>i  i:i\«;  THE  MIDDLE  AGES.        .  94 

VII  THE  GOVERNMENT  OF  FRANCE 129 

VIII  THE  GOVERNMENT  OF  GREAT  BRITAIN     .         .         .         .         .  178 

IX  THE  GOVERNMENT  OF  UNITED  STATES 267 

X  THE  GOVERNMENTS  OF  SWITZERLAND        .....  387 

XI  THE  GOVERNMENT  OF  ITALY 421 

XII  THE  GOVERNMENT  OF  BELGIUM 432 

XIII  THE  GOVERNMENTS  OF  GERMANY 438 

XIV  THE  GOVERNMENTS  OF  AUSTRIA-HUNGARY       ....  491 
XV  THE  GOVERNMENT  OF  SERBIA 607 

XVI  THE  GOVERNMENT  OF  RUMANIA 612 

XVII  THE  GOVERNMENT  OF  BULGARIA 616 

XVIII  THE  GOVERNMENT  OF  GREECE 619 

XIX  THE  GOVERNMENTS  OF  RUSSIA  AND  TURKEY  ....  523 

XX  THE  GOVERNMENT  OF  JAPAN 626 

XXI  SUMMARY:    CONSTITUTIONAL  AND  ADMINISTRATIVE  DEVELOP- 
MENTS    634 

XXII  AFTER  THE  WAB  651 


I. 

THE  EARLIEST  FORMS  OF  GOVERNMENT. 


Nature  of  the  Question. — The  probable  origin  of  govern- 
ment  is  a  question  of  fact,  to  be  settled,  not  by  conjecture,  but 
by  history.  Some  traces  we  can  still  discern  of  the  history  of 
primitive  societies.  As  fragments  of  primitive  animals  have 
been  kept  for  us  sealed  up  in  the  earth's  rocks,  so  fragments 
of  primitive  institutions  have  been  preserved,  embedded  in  the 
rocks  of  surviving  law  or  custom,  mixed  up  with  the  rubbish  of 
accumulated  tradition,  crystallized  in  the  organization  of  still 
savage  tribes,  or  kept  curiously  in  the  museum  .of  fact  and  rumor 
swept  together  by  some  ancient  historian.  Limited  and  perplex- 
ing as  such  means  of  reconstructing  history  may  be,  they  repay 
patient  comparison  and  analysis  as  richly  as  do  the  materials  of 
the  archaeologist  and  the  philologian.  The  facts  as  to  the  origin 
and  early  history  of  government  are  at  least  as  available  as  the 
facts  concerning  the  growth  and  kinship  of  languages  or  the 
genesis  and  development  of  the  arts  and  sciences.  Such  light 
as  we  can  get  from  the  knowledge  of  the  infancy  of  society  thus 
meagrely  afforded  us  is,  at  any  rate,  better  than  that  derived 
from  a  priori  speculations  founded  upon  our  acquaintance  with 
our  modern  selves,  or  from  any  fancies,  how  learnedly  soever 
constructed,  that  we  might  weave  as  to  the  way  in  which  jiistory 
might  plausibly  be  read  backwards. 

Races  to  be  studied :  the  Aryans.  —  For  purposes  of  widest 
comparison  in  tracing  the  development  of  government  it  would 
of  course  be  desirable  to  include  in  a  study  of  early  society  not 
only  those  Aryan  and  Semitic  races  which  have  played  the  chief 
parts  in  the  history  of  the  European  world,  but  also  every  primi- 
tive tribe,  whether  Hottentot  or  Iroquois,  Finn  or  Turk,  of  whose 

1 


2        THE  EARLIEST  FORMS  OF  GOVERNMENT. 

institutions  and  development  we  know  anything  at  all.  Such  a 
world-wide  survey  would  be  necessary  to  any  induction  which 
should  claim  to  trace  government  in  all  its  forms  to  a  common 
archetype.  But,  practically,  no  such  sweeping  together  of  incon- 
gruous savage  usage  and  tradition  is  needed  to  construct  a  safe 
text  from  which  to  study  the  governments  that  have  grown  and 
come  to  full  flower  in  the  political  world  to  which  we  belong. 
In  order  to  trace  the  lineage  of  the  European  and  American 
governments  which  have  constituted  the  order  of  social  life  for 
those  stronger  and  nobler  races  which  have  made  the  most  nota- 
ble progress  in  civilization,  it  is  essential  to  know  the  political 
history  of  the  Greeks,  the  Latins,  the  Teutons,  and  the  Celts 
principally,  if  not  only,  and  the  original  political  habits  and 
ideas  of  the  Aryan  and  Semitic  races  alone.  The  existing  gov- 
ernments of  Europe  and  America  furnish  the  dominating  types 
of  to-day.  To  know  other  systems  which  are  defeated  or  dead 
would  aid  only  indirectly  towards  an  understanding  of  those 
which  are  alive  and  triumphant. 

Semitic  and  Turanian  Instance.  —  Even  Semitic  institutions, 
indeed,  must  occupy  only  a  secondary  place  in  such  inquiries. 
The  main  stocks  of  modern  European  forms  of  government  are 
Aryan.  The  institutional  history  of  Semitic  or  Turanian  peoples 
is  hardly  part  of  the  history  of  European  governments :  it  is  only 
analogous  to  it  in  many  of  the  earlier  stages  of  development. 
Aryan,  Semitic,  and  Turanian  races  alike  seem  to  have  passed 
at  one  period  or  another  through  similar  forms  of  social  organiza- 
tion. Each,  consequently,  furnishes  illustrations  in  its  history, 
and  in  those  social  customs  and  combinations  which  have  most 
successfully  survived  the  wreck  of  change,  of  probable  early 
forms  and  possible  successive  stages  of  political  life  among  the 
others,  Aryan  practice  may  often  be  freed  from  doubt  by 
Semitic  or  Turanian  instance  j  but  it  is  Aryan  practice  we  prin- 
cipally wish  to  know. 

Government  rested  First  upon  Kinship.1  —  What  is  known  of 

the  central  nations  of  history  clearly  reveals  the  fact  that  social 

organization,  and  consequently  government  (which  is  the  visible 

form  of  social  organization),  originated  in  kinship.     The  original 

1  The  origin  of  government  in  kinship  has  been  sharply  questioned, 


THE  EARLIEST  FORMS  OF  GOVERNMENT.          3 

bond  of  union  and  the  original  sanction  for  magisterial  authority 
were  one  and  the  same  thing,  namely,  real  or  feigned  blood-rela- 
tionship. In  other  words,  families  were  the  original  units  of 
social  organization ;  and  were  at  first,  no  doubt,  in  a  large  degree 
separate.  It  was  only  by  slow  stages  and  under  the  influence  of 
many  changes  of  habit  and  environment  that  the  family  organi- 
zation widened  and  families  were  drawn  together  into  communi- 
ties. A  group  of  men  who  considered  themselves  in  some  sort 
kinsmen  constituted  the  first  State. 

Early  History  of  the  Family;  was  it  originally  Patriarchal? 
—  The  origin  of  government  is,  therefore,  intimately  connected 
with  the  early  history  of  the  family.  It  is  the  more  unfortunate 
that  the  conclusions  to  be  drawn  from  what  is  known  of  the 
beginnings  of  the  family  should  furnish  matter  for  much  modern 
difference  of  opinion.  This  difference  of  opinion  may  be  defi- 
nitely summed  up  in  the  two  following  contrasted  views :  — 

(1)  That  the  patriarchal  family,  to  which  the  early  history  of 
the  greater  races  runs  back,  and  with  which  that  history  seems 
to  begin,  was  the  family  in  its  original  estate,  —  the  original,  the 
true  archaic  family. 

The  patriarchal  family  is  that  in  which  descent  is  traced  to  a  common 
male  ancestor,  through  a  direct  male  line,  and  in  which  the  authority  ol 
rule  vests  in  the  eldest  living  male  ascendant. 

(2)  That  the  patriarchal  family,  which  is  acknowledged  to  be 
found  in  one  stage  or  another  of  the  development  of  almost  every 
race  now  civilized,  was  a  developed  and  comparatively  late  form 
of  the  family,  and  not  its  first  form,  having  been  evolved  through 
various  stages  and  varieties  of  polyandry  (plurality  of  husbands) 
and  of  polygyny  (plurality  of  wives)  out  of  a  possibly  original 
state  of  promiscuity  and  utter  confusion  in  the  relations  of  the 
sexes  and  of  consequent  confusion  in  blood-relationship  and  in 
the  government  of  offspring. 

In  brief,  it  is  held  on  the  one  hand  that  the  patriarchal  family 
was  the  original  family;  and  on  the  other,  that  it  was  not  the 
original  but  a  derived  form,  others  of  a  less  distinct  organization 
preceding  it. 

The  Evidence.  —  It  is  of  course  impracticable  to  set  forth 


4         THE  EARLIEST  FORMS  OF  GOVERNMENT. 

here  the  miscellaneous  evidence  which  has  been  swept  together 
concerning  so  very  obscure  and  complex  a  question.  Suffice  it 
to  say  that  among  many  primitive  races  cases  abound  of  the 
reckoning  of  kinship  through  mothers  only,  as  if  in  matter-of- 
course  doubt  as  to  paternity;  of  consanguinity  signified  through- 
out the  wide  circle  of  a  tribe,  not  by  real  or  supposed  common 
descent  from  a  human  ancestor,  but  by  means  of  the  fiction  of 
common  descent  from  some  bird  or  beast,  from  which  the  tribe 
takes  its  name,  as  if  for  lack  of  any  better  means  of  determining 
common  blood;  of  marriages  of  brothers  with  sisters,  and  of 
groups  of  men  with  groups  of  women,  or  of  groups  of  men  with 
some  one  woman.  In  the  case  of  some  tribes,  moreover,  among 
whom  polygamy  or  even  monogamy  now  exists,  together  with  a 
patriarchal  discipline,  it  is  thought  to  be  possible  to  trace  clear 
indications  of  an  evolution  of  these  more  civilized  forms  of  family 
organization  from  'earlier  practices  of  loose  multiple  marriages 
or  even  still  earlier  promiscuity  in  the  sexual  relation. 

The  peoples,  however,  among  whom  such  confusions  of  sexual 
relationships  have  been  observed  are  not  those  who  have  emerged 
upon  the  European  field.  Among  almost  every  European  folk 
there  is  clear,  unbroken  tradition  running  back  to  a  patriarchal 
power  and  organization.  Roman  law,  that  .prolific  mother  of 
modern  legal  idea  and  practice,  bears  impressed  upon  every 
feature  of  it  indubitable  marks  of  its  descent  from  a  time  when 
the  father  ruled  as  king  and  high  priest  in  the  family.  Greek 
institutions  speak  hardly  less  unequivocally  of  a  similar  deriva- 
tion. No  belief  is  more  deeply  fixed  in  the  traditions  of  the 
great  peoples  who  have  made  modern  history  than  the  belief  of 
direct  common  descent,  through  males,  from  a  common  male 
ancestor,  human  or  divine;  and  nothing  could  well  be  more 
numerous  or  distinct  than  the  traces  inhering  in  the  very  heart 
of  their  polity  of  an  original  patriarchal  organization  of  the 
family  as  the  archetype  of  their  political  order. 

The  Warrantable  Conclusion.  —  The  evidence  of  more  con- 
fused marriage  relationships,  moreover,  is  nowhere  of  such  a 
character  as  to  warrant  the  conclusion  that  promiscuity  in  sexual 
connections  has  among  any  people  marked  the  first  or  any  regular 
stage  of  social  development.  "All  the  evidence  we  possess  tends 


THE  EARLIEST  FORMS  OF  GOVERNMENT.         5 

to  show  that  among  our  earliest  human  ancestors  the  family,  not 
the  tribe,  formed  the  nucleus  of  every  social  group,  and,  in  many 
cases,  was  itself  perhaps  the  only  social  group."  "It  seems 
probable,  moreover,  that  monogamy  prevailed  almost  exclusively 
among  our  earliest  human  ancestors."1  Promiscuity  belongs, 
not  to  the  most  primitive  times  or  to  the  regular  order  of  social 
life,  but  rather  to  exceptional  seasons  of  demoralization  or  con- 
fusion ;  to  times  of  decadence  rather  than  to  the  origins  of  the 
race.  Polyandry  has  grown  up  only  where  the  women  were  fewer 
than  the  men,  and  has  almost  necessarily  broken  down  when  the 
numerical  balance  between,  the  sexes  was  restored.  Polygyny 
"has  been  less  prevalent  at  the  lowest  stages  of  civilization, — 
where  wars  do  not  seriously  disturb  the  proportion  of  the  sexes ; 
where  life  is  chiefly  supported  by  hunting,  and  female  labor  is 
consequently  of  slight  value ;  where  there  is  no  accumulation  of 
wealth  and  no  distinction  of  class,  —  than  it  is  at  somewhat  higher 
stages."2  Where  it  does  exist,  it  is  invariably  confined  to  a 
small  minority  of  wealthy  and  powerful  men;  the  majority,  from 
choice  or  necessity,  are  always  monogamous.  First  and  last,  the 
strong  monogamous  instinct,  has  tended  to  exclude  promiscuous 
or  multiplied  sexual  connections,  and  to  build  up  a  distinct  family 
order  round  about  monogamous  marriages.3 

The  efficient  races  who  have  dominated  the  European  stage,  at 
any  rate,  came  into  their  place  of  leadership  and  advantage  under 
the  discipline  of  the  patriarchal  order  of  family  life.  Whether 
with  several  wives  or  with  only  one,  the  father  was  chief  and 
master  among  them,  and  the  family  showed  that  clear  authority 
and  close  organization  which  was  to  serve  in  fulness  of  time  as 
the  prototype  and  the  model  for  the  State. 

From  the  Patriarchal  Family  to  the  State. —  Among  these 
Aryan  peoples  there  was  first  the  family  ruled  by  the  father  as 
king  and  priest.  There  was  no  majority  for  the  sons  so  long  as 
their  father  lived.  They  might  marry  and  have  children,  but 
they  could  have  no  entirely  separate  and  independent  authority 
during  their  father's  life  save  such  as  he  suffered  them  to  exer- 

1  Westermarck,  History  of  Human  Marriage,  pp.  638,  649.          2  Id.  648. 
3  For  a  contrary  view  see  Avebury,    The  Origin  of  Civilization  and  the 
Primitive  Condition  of  Man.     6th  ed.,  London,  1902. 


6        THE  EARLIEST  FORMS  OF  GOVERNMENT. 

else.  All  that  they  possessed,  their  lives  even  and  the  lives  of 
those  dependent  upon  them,  were  at  the  disposal  of  this  abso- 
lute father-sovereign.  Such  a  group  naturally  broadens  in  time 
into  the  'House/  or  gens,  and  over  this  too  a  chief  kinsman  rules. 
There  are  common  religious  rites  and  observances  which  the  gens 
regards  as  symbolic  of  its  unity  as  a  composite  family;  and  heads 
of  houses  exercise  many  high  representative  and  probably  some 
imperative  magisterial  functions  by  virtue  of  their  position. 
Then,  as  the  social  order  widens,  Houses  are  in  their  turn 
absorbed.  The  first  distinctively  political  unit,  no  doubt,  was 
the  Tribe:  broader  than  the  gens  and  tending  to  subordinate  it; 
a  body  in  which  kinship  must  still  have  been  deemed  the  bond 
of  union,  but  in  which,  nevertheless,  it  must  have  been  a  very 
obscure  bond  indeed,  and  in  which  family  rights  must  steadily 
have  tended  to  give  way  before  the  establishment  of  a  common 
order  within  which  the  House  served  only  as  a  unit  of  member- 
ship and  a  corporation  for  worship. 

Tribes  at  length  united  to  form  a  State.  In  days  of  nomadic 
habit  the  organization  of  the  Tribe  sufficed,  and  no  more  fixed, 
definite,  or  effective  order  was  attempted.  But  when  a  people's 
travelling  days  were  over,  a  settled  life  brought  new  needs  of 
organization:  a  larger  power  must  have  sprung  up  almost  of 
itself.  Then  a  very  significant  thing  happened.  The  State  in 
effect  ousted  both  the  House  and  the  Tribe  from  their  functions 
as  political  units,  and  came  itself  to  rest,  not  upon  these  for 
foundation,  but  upon  the  family,  the  original  formation  of  the 
social  substructure.  Tribe  and  gens  served  henceforth  only  as 
religious  corporations  or  as  the  convenient  units  of  representa- 
tion in  the  action  of  the  State. 

Prepossessions  to  be  put  away.  —  In  looking  back  to  the  first 
stages  of  political  development,  it  is  necessary  to  put  away  from 
the  mind  certain  prepossessions  which  are  both  proper  and  legiti- 
mate to  modern  conceptions  of  government,  but  which  can  have 
found  no  place  in  primitive  thought  on  the  subject.  It  is  not 
possible  nowadays  to  understand  the  early  history  of  institutions 
without  thus  first  divesting  the  mind  of  many  conceptions  most 
natural  and  apparently  most  necessary  to  it.  The  centuries  which 
separate  us  from  the  infancy  of  society  separate  us  also,  by  the 


THE   EARLIEST   FORMS   OF   GOVERNMENT.  7 

whole  length  of  the  history  of  human  thought,  from  the  ideas  into 
which  the  fathers  of  the  race  were  born  ;  and  nothing  but  a  most 
credulous  movement  of  the  imagination  can  enable  the  student  of 
to-day  to  throw  himself  back  into  those  conceptions  of  social  con- 
nection  and  authority  in  which  government  took  its  rise. 

The  State  and  the  Land.  —  How  is  it  possible,  for  instance,  f 01 
the  modern  mind  to  conceive  distinctly  a  travelling  political  organi- 
zation, a  State  without  territorial  boundaries  or  the  need  of  them, 
composed  of  persons,  but  associated  with  no  fixed  or  certain  habi- 
tat ?  And  yet  such  were  the  early  tribal  states,  —  nomadic  groups, 
now  and  again  hunting,  fishing,  or  tending  their  herds  by  this  or 
that  particular  river  or  upon  this  or  that  familiar  mountain  slope 
or  inland  seashore,  but  never  regarding  themselves  or  regarded  by 
their  neighbors  as  finally  identified  with  any  definite  territory. 
Historians  have  pointed  out  the  abundant  evidences  of  these  facts 
that  are  to  be  found  in  the  history  of  Europe  no  further  back  than 
the  fifth  century  of  our  own  era.  The  Franks  came  pouring  into 
the  Roman  empire  just  because  they  had  had  no  idea  theretofore 
of  being  confined  to  any  particular  Frank-farad.  They  left  no 
France  behind  them  at  the  sources  of  the  Rhine;  and  their  kings 
quitted  those  earlier  seats  of  their  race,  not  as  kings  of  France, 
but  as  kings  of  the  Franks.  There  were  kings  of  the  Franks 
when  the  .territory  now  called  Germany,  as  well  as  that  now 
known  as  France,  was  in  the  possession  of  that  imperious  race : 
and  they  became  kings  of  France  only  when,  some  centuries  later, 
they  had  settled  down  to  the  unaccustomed  habit  of  confining 
themselves  to  a  single  land.  Drawn  by  the  processes  of  feudali- 
zation  (pages  109,  115,  129),  sovereignty  then  found  at  last  a 
local  habitation  and  a  name. 

The  same  was  true  of  the  other  Germanic  nations.  They 
also  had  chiefs  who  were  the  chiefs  of  people,  not  the  chiefs  of 
lands.  There  were  kings  of  the  English  for  many  a  year,  even 
for  several  centuries  after  A.D.  449,  before  there  was  such  a  thing 
as  a  king  of  England.  John  was  the  first  officially  to  assume  the 
latter  title.  From  the  first,  it  is  true,  social  organization  has 
everywhere  tended  to  connect  itself  more  and  more  intimately 
with  the  land  from  which  each  social  group  has  drawn  its  suste- 
nance. When  the  migratory  life  was  over,  especially,  and  the 


8  THE   EARLIEST    FORMS    OF    GOVERNMENT. 

settled  occupations  of  agriculture  had  brought  men  to  a  stand 
upon  the  land  which  they  were  learning  to  till,  political  life, 
like  all  the  other  communal  activities,  came  to  be  associated 
more  and  more  directly  with  the  land  on  which  each  community 
lived.  But  such  a  connection  between  lordship  and  land  was  a 
slowly  developed  notion,  not  a  notion  twin-born  with  the  notion  of 
government. 

Modern  definitions  of  a  State  always  limit  sovereignty  to 
some  definite  land.  "  A  State  "  —  runs  the  modern  definition  — 
"is  a  People  organized  for  law  within  a  definite  territory."  But 
the  first  builders  of  government  would  not  have  found  such  a 
definition  intelligible.  They  could  not  have  understood  why 
they  might  not  move  their  whole  people,  'bag  and  baggage/  to 
other  lands,  or  why,  for  the  matter  of  that,  they  might  not  keep 
them  moving  their  tents  and  possessions  unrestingly-from  place 
to  place  in  perpetual  migration,  without  in  the  least  disturbing 
the  integrity  or  even  the  administration  of  their  infant  '  State/ 
Each  organized  group  of  men  had  other  means  of  knowing  their 
unity  than  mere  neighborhood  to  one  another;  other  means  of 
distinguishing  themselves  from  similar  groups  of  men  than  dis- 
tance or  the  intervention  of  mountain  or  stream.  The  original 
groups  were  knit  together  by  bonds  closer  than  those  of  geog- 
raphy, more  real  than  the  bonds  of  mere  contiguity.  They  were 
bound  together  by  real  or  assumed  kinship.  They  had  a  corporate 
existence  which  they  regarded  as  inhering  in  their  blood  and  as 
expressed  in  all  their  daily  relations  with  each  other.  They 
lived  together  because  of  these  relations ;  they  were  not  related 
because  they  lived  together. 

Contract  versus  Status.  —  Scarcely  less  necessary  to  modern 
thought  than  the  idea  of  territorially  as  connected  with  the  exist- 
ence of  a  State,  is  the  idea  of  contract  as  determining  the  relations 
of  individuals.  And  yet  this  idea,  too,  must  be  put  away  if  we 
would  understand  primitive  society.  In  that  society  men  were 
born  into  the  station  and  the  part  they  were  to  have  throughout 
life,  as  they  still  are  among  the  peoples  who  preserve  their  earliest 
sonceptions  of  social  order.  This  is  known  as  the  law  of  status. 
It  is  not  a  matter  of  choice  or  of  voluntary  arrangement  in  what 
relations  men  shall  stand  towards  each  other  as  individuals.  He 


THK    KAHLIKST    F<>  KMS    <>F    <  ;<  » V  Ki:  NMKNT.  9 

who  is  born  a  slave,  let  him  remain  a  slave ;  the  artisan,  an  arti« 
san;  the  priest,  a  priest,  —  is  the  command  of  the  law  of  status. 
Excellency  cannot  avail  to  raise  any  man  above  his  parentage ; 
aptitude  is  suffered  to  operate  only  within  the  sphere  of  each 
man's  birthright.  No  man  may  lose  ' caste'  without  losing 
respectability  also  and  forfeiting  the  'protection  of  the  law.  Or, 
to  go  back  to  a  less  developed  society,  no  son,  however  gifted, 
may  lawfully  break  away  from  the  authority  of  his  father,  how- 
ever cruel  or  incapable  that  father  may  be ;  or  make  any  alliance 
which  will  in  the  least  degree  draw  him  away  from  the  family 
alliance  and  duty  into  which  he  was  born.  There  is  no  thought 
of  contract.  Every  man's  career  is  determined  for  him  before 
his  birth.  His  blood  makes  his  life.  To  break  away  from  one's 
birth  station,  under  such  a  system,  is  to  make  breach  not  only  of 
social,  but  also  of  religious  duty,  and  to  bring  upon  oneself  the 
curses  of  men  and  gods.  Primitive  society  rested,  not  upon  con- 
tract, but  upon  status.  Status  had  to  be  broken  through  by  some 
conscious  or  unconscious  revolution  before  so  much  as  the  idea 
of  contract  could  arise ;  and  when  that  idea  did  arise,  change  and 
variety  were  assured.  Change  of  the  existing  social  order  was 
the  last  thing  of  which  the  primitive  community  dreamed ;  and 
those  races  which  allowed  the  rule  of  status  to  harden  about  their 
lives  still  stand  where  they  stood  a  thousand  years  ago.  "  The 
leaving  of  men  to  have  their  careers  determined  by  their  efficien- 
cies," says  Mr.  Spencer,  "  we  may  call  the  principle  of  change  in 
social  organization." 

Theories  concerning  the  Origin  of  the  State :  the  Contract 
Theory.  —  Such  views  of  primitive  society  furnish  us  with  destruc- 
tive dissolvents  of  certain  theories  once  of  almost  universal  vogue 
as  to  the  origin  of  government.  The  most  famous,  and  for  our 
present  purposes  most  important,  of  these  theories  is  that  which 
ascribes  the  origin  of  government  to  a  'social  compact'  among 
primitive  men. 

The  most  notable  names  connected  with  this  theory  as  used  to  account 
for  the  existence  of  political  society  are  the  names  of  Hooker,  Hobbes, 
Locke,  and  Rousseau.  It  is  to  be  found  developed  in  Hooker's  Ecclesias- 
tical Polity,  Hobbes'  Leviathan,  Locke's  Civil  Government,  and  Rousseau's 
The  Social  Contract. 


10  THE   EARLIEST    FORMS    OF   GOVERNMENT. 

This  theory  begins  always  with  the  assumption  that  there  exists, 
outside  of  and  above  the  laws  of  men,  a  Law  of  Nature.1  Hobbes 
conceived  this  Law  to  include  "justice,"  "equity,"  "modesty," 
"  mercy  " ;  "  in  sum,  <  doing  to  others  as  we  would  be  done  to.' " 
A.11  its  chief  commentators  considered  it  the  abstract  standard  to 
which  human  law  should  conform.  Into  this  Law  primitive  men 
were  born.  It  was  binding  upon  their  individual  consciences ;  but 
their  consciences  were  overwhelmed  by  individual  pride,  ambi- 
tion, desire,  and  passion,  which  were  strong  enough  to  abrogate 
Nature's  Law.  That  Law,  besides,  did  not  bind  men  together.  Its 
dictates,  if  obeyed,  would  indeed  enable  them  to  live  tolerably 
with  one  another ;  but  its  dictates  were  not  obeyed ;  and,  even  if 
they  had  been,  would  have  furnished  no  permanent  frame  of  civil 
government,  inasmuch  as  they  did  not  sanction  magistracies,  the 
setting  of  some  men  to  be  judges  of  the  duty  and  conduct  of  other 
men,  but  left  each  conscience  to  command  absolutely  the  conduct 
of  the  individual.  In  the  language  of  the  '  judicious  Hooker/ 
the  laws  of  Nature  "do  bind  men  absolutely,  even  as  they  are 
men,  although  they  have  never  any  settled  fellowship,  never  any 
solemn  agreement,  amongst  themselves  what  to  do  or  not  to  do ; 
but  forasmuch  as  we  are  not  by  ourselves  sufficient  to  furnish 
ourselves  with  competent  store  of  things  needful  for  such  a  life 
as  our  Nature  doth  desire,  a  life  fit  for  the  dignity  of  man,  there- 
fore to  supply  these  defects  and  imperfections  which  are  in  us 
living  single  and  solely  by  ourselves,  we  are  naturally  induced  to 
seek  communion  and  fellowship  with  others.  This  was  the  cause 
of  men  uniting  themselves  at  first  in  politic  societies."2  In  other 
words,  the  belligerent,  non-social  parts  of  man's  character  were 
originally  too  strong  for  this  Law  of  Nature,  and  the  '  state  of 
nature,'  in  which  that  Law,  and  only  that  Law,  offered  restraint 
to  the  selfish  passions,  became  practically  a  state  of  war,  and  con- 
sequently intolerable.  It  was  brought  to  an  end  in  the  only  way 
in  which  such  a  condition  of  affairs  could  be  brought  to  an  end 
without  mutual  extermination,  namely,  by  common  consent,  by 
men's  "  agreeing  together  mutually  to  enter  into  one  community 

1  For  the  natural  history  of  this  conception  of  a  Law  of  Nature,  see  Maine, 
Ancient  Law,  Chap.  III. 

2  Ecclesiastical  Polity,  Book  I.,  sec.  10. 


THE  EARLIEST  FORMS  OF  GOVERNMENT.        ll 

and  make  one  body  politic."  (Locke.)  This  agreement  meant  sub- 
mission to  some  one  common  authority,  which  should  judge  between 
man  and  man;  the  surrender  on  the  part  of  each  man  of  all  rights 
antagonistic  to  the  rights  of  others ;  forbearance  and  cooperation. 
Locke  confidently  affirmed  "that  all  men  are  naturally  in  that 
state  [a  state,  i.e.,  of  nature],  and  remain  so  till,  by  their  own 
consents,  they  make  themselves  members  of  some  politic  society." 
It  was  only  as  the  result  of  deliberate  choice,  in  the  presence  of 
the  possible  alternative  of  continuing  in  this  state  of  nature,  that 
commonwealths  came  into  being. 

Traditions  of  an  Original  Lawgiver.  —  Ancient  tradition 
had  another  way  of  accounting  for  the  origin  of  laws  and  institu- 
tions. The  thought  of  almost  every  nation  of  antiquity  went  back 
to  some  single  lawgiver  at  whose  hands  their  government  had 
taken  its  essential  and  characteristic  form,  if  not  its  beginning. 
There  was  a  Moses  in  the  background  of  many  a  history  besides 
that  of  the  Jews.  In  the  East  there  was  Menu ;  Crete  had  her 
Minos ;  Athens  her  Solon ;  Sparta  her  Lycurgus ;  Rome  her 
Xuma;  England  her  Alfred.  These  names  do  not  indeed  in 
every  instance  stand  so  far  back  as  the  beginning  of  government ; 
but  they  do  carry  the  mind  back  in  almost  every  case  to  the  birth 
of  national  systems,  and  suggest  the  overshadowing  influence  of 
individual  statesmen  as  the  creative  power  in  framing  the  greater 
combinations  of  politics.  They  bring  the  conception  of  conscious 
choice  into  the  history  of  institutions.  They  look  upon  systems 
as  made,  rather  than  as  developed. 

Theory  of  the  Divine  Origin  of  the  State.— Not  altogether 
unlike  these  ancient  conceptions  of  lawgivers  towering  above 
other  men  in  wisdom  and  authority,  dominating  political  construc- 
tion, and  possibly  inspired  by  divine  suggestion,  is  that  more 
modern  idea  which  attributes  human  government  to  the  imme- 
diate institution  of  God  himself,^ — to  the  direct  mandate  of  the 
Creator.  This  theory  has  taken  either  the  definite  form  of  regard- 
ing human  rulers  as  the  direct  vicegerents  of  God,  or  the  vague 
form  ot  regarding  government  as  in  some  way  given  to  man  as 
part  of  his  original  make-up 

The  Theories  and  the  Facts.  —  Modern  research  into  the 
early  history  of  mankind  has  made  it  possible  to  reconstruct, 


12       THE  EARLIEST  FORMS  OF  GOVERNMENT. 

in  outline,  much  of  the  thought  and  practice  of  primitive  society, 
and  has  thus  revealed  facts  which  render  it  impossible  for  us  to 
accept  any  of  these  views  as  adequately  explaining  what  they 
seek  to  explain.  The  defects  of  the  social  compact  theory  are  too 
plain  to  need  more  than  brief  mention.  That  theory  simply  has 
no  historical  foundation.  The  family  was  the  original,  and  status 
'the  fixed  basis,  of  primitive  society.  The  individual  counted  for 
nothing;  society — the  family,  the  tribe  —  counted  for  everything. 
Government  came,  so  to  say,  before  the  individual  and  was  coeval 
with  his  first  human  instincts.  There  was  no  place  for  contract  ; 
and  yet  this  theory  makes  contract  the  first  fact  of  social  life. 
Such  a  contract  as  it  imagines  could  not  have  stood  unless  sup- 
ported by  that  reverence  for  '  law '  which  is  an  altogether  modern 
principle  of  action.  The  times  in  which  government  originated 
knew  absolutely  nothing  of  law  as  we  conceive  it.  The  only  bond 
was  kinship,  —  the  common  blood  of  the  community;  the  only 
individuality  was  the  individuality  of  the  community  as  a  whole. 
Man  was  merged  in  society.  Without  kinship  there  was  no  duty 
and  no  union.  It  was  not  by  compounding  rights,  but  by  assum- 
ing kinship,  that  groups  widened  into  States,  —  not  by  contract, 
but  by  adoption.  Not  deliberate  and  reasoned  respect  for  law, 
but  habitual  and  instinctive  respect  for  authority,  held  men 
together;  and  authority  did  not  rest  upon  mutual  agreement, 
but  upon  mutual  subordination. 

Of  the  theories  of  the  origination  of  government  in  indi- 
vidual lawgiving  or  in  divine  dictate,  it  is  sufficient  to  say  that 
the  one  exaggerates  the  part  played  by  human  choice,  and  the 
other  the  part  played  by  man's  implanted  instincts,  in  the 
formation  and  shaping  of  political  society. 

The  Truth  in  the  Theories.  —  Upon  each  of  these  theories, 
nevertheless,  there  evidently  lies  the  shadow  of  a  truth.  Although 
government  did  not  originate  in  a  deliberate  contract,  and  although 
no  system  of  law  or  of  social  order  was  ever  made  { out  of  hand ' 
by  any  one  man,  government  was  not  all  a  mere  spontaneous 
growth.  Deliberate  choice  has  always  played  a  part  in  its  devel- 
opment. It  was  not,  on  the  one  hand,  given  to  man  ready-made 
by  God,  nor  was  it,  on  the  other  hand,  a  human  contrivance.  In 
its  origin  it  was  spontaneous,  natural,  twin-born  with  man  and 


THE   EARLIEST   FORMS   OF   GOVERNMENT.  13 

the  family;  Aristotle  was  simply  stating  a  fact  when  he  said, 
"Man  is  by  nature  a  political  animal."  But,  once  having  arisen, 
government  was  affected,  and  profoundly  affected,  by  man's 
choice ;  only  that  choice  entered,  not  to  originate,  but  to  modify 
government. 

Conclusion.  —  Viewed  in  the  light  of  "  the  observed  and 
recorded  experience  of  mankind,"  "the  ground  and  origin  of 
society  is  not  a  compact ;  that  never  existed  in  any  known  case, 
and  never  was  a  condition  of  obligation  either  in  primitive  or 
developed  societies,  either  between  subjects  and  sovereign,  or 
between  the  equal  members  of  a  sovereign  body.  The  true 
ground  is  the  acceptance  of  conditions  which  came  into  exist- 
ence by  the  sociability  inherent  in  man,  and  were  developed  by 
man's  spontaneous  search  after  convenience.  The  statement  that 
while  the  constitution  of  man  is  the  work  of  nature,  that  of  the 
state  is  the  work  of  art,  is  as  misleading  as  the  opposite  state- 
ment that  governments  are  not  made,  but  grow.  The  truth  lies 
between  them,  in  such  propositions  as  that  institutions  owe  their 
existence  and  development  to  deliberate  human  effort,  working  in 
accordance  with  circumstances  naturally  fixed  both  in  human 
character  and  in  the  external  field  of  its  activity."  l 

The  Beginnings  of  Government.  —  Government  must  have 
had  substantially  the  same  early  history  amongst  all  progressive 
races.  It  must  have  begun  in  clearly  defined  family  discipline. 
Such  discipline  would  scarcely  be  possible  among  races  in  which 
consanguinity  was  subject  to  profound  confusion  and  in  which 
family  organization  therefore  had  no  clear  basis  of  authority  on 
which  to  rest.  In  every  case,  it  would  seem,  the  origination  of 
what  we  should  deem  worthy  of  the  name  of  government  must 
have  awaited  the  development  of  some  such  definite  family  as 
that  in  which  the  father  was  known,  and  known  as  ruler. 
Whether  or  not  the  patriarchal  family  was  the  first  form  of  the 
family,  it  must  have  furnished  the  first  adequate  form  of  gov- 
ernment. 

The  Family  the  Primal  Unit.  —  The  family  was  the  primal 
unit  of  political  society,  and  the  seed-bed  of  all  larger  growths  of 
government.  The  individuals  that  were  drawn  together  to  con* 

1  John  Morley,  Rousseau,  Vol.  II.,  pp.  183-4. 


14  THE   EARLIEST    FORMS    OF    GOVERNMENT. 

stitute  the  earliest  communities  were  not  individual  men,  as 
Locke  and  Locke's  co-theorists  would  lead  us  to  believe,  but 
individual  families;  and  the  organization  of  these  families, 
whether  singly  or  in  groups,  furnished  the  ideas  in  which  politi- 
cal society  took  its  root.  The  members  of  each  family  were 
bound  together  by  kinship.  The  father's  authority  bore  the 
single  sanction  of  his  being  the  fountain-head  of  the  common 
blood-relationship.  No  other  bond  was  known,  or  was  then  con- 
ceivable, except  this  single  bond  of  blood-relationship.  A  man 
out  of  this  circle  of  kinship  was  outside  the  boundaries  of  pos- 
sible friendship,  was  as  of  course  an  alien  and  an  enemy. 

Persistence  of  the  Idea  of  Kinship.  —  When  society  grew, 
it  grew  without  any  change  of  this  idea.  Kinship  was  still, 
actually  or  theoretically,  its  only  amalgam.  The  commonwealth 
was  for  long  conceived  of  as  being  only  a  larger  kindred.  When 
by  natural  increase  a  family  multiplied  its  branches  and  widened 
into  a  gens,  and  there  was  no  grandfather,  great-grandfather,  or 
other  patriarch  living  to  keep  it  together  in  actual  domestic 
oneness,  it  would  still  not  separate.  The  extinct  authority  of 
the  actual  ancestor  could  be  replaced  by  the  less  comprehensive 
but  little  less  revered  authority  of  some  selected  elder  of  the 
'House,'  the  oldest  living  ascendant,  or  the  most  capable.  Here 
would  be  the  materials  for  a  complete  body  politic  held  together 
by  the  old  fibre  of  actual  kinship. 

Fictitious  Kinship :  Adoption.  —  Organization  upon  the 
basis  of  a  fictitious  kinship  was  hardly  less  naturally  contrived 
in  primitive  society.  There  was  the  ready,  and  immemorial, 
fiction  of  adoption,  which  to  the  thought  of  that  time  seemed  no 
fiction  at  all.  The  adopted  man  was  no  kss  real  a  member  of 
bhe  family  than  was  he  who  was  natural-born.  His  admittance 
to  the  sacred,  the  exclusive  religious  mysteries  of  the  family,  at 
which  no  stranger  was  ever  suffered  even  to  be  present,  and  his 
acceptance  of  the  family  gods  as  his  own  gods,  was  not  less  effi- 
cacious in  making  him  one  with  the  household  and  the  kin  than 
if  he  had  opened  his  veins  to  receive  their  blood.  And  so,  too, 
Houses  could  grow  by  the  adoption  of  families,  through  the 
sngrafting  of  the  alien  branches  into  this  same  sacred  stock  of 
bhe  esoteric  religion  of  the  kindred.  Whether  naturally,  there- 


THE  EARLIEST  FORMS  OF  GOVERNMENT.       15 

fore,  or  artificially,  Houses  widened  into  tribes,  and  tribes  into 
commonwealths,  without  loss  of  that  kinship  in  the  absence  of 
which,  to  the  thinking  of  primitive  men,  there  could  be  no  com- 
munion, and  therefore  no  community,  at  all. 

Kinship  and  Religion.  —  In  this  development  kinship  and 
religion  operated  as  the  two  chief  formative  influences.  Reli- 
gion seems  in  most  instances  to  have  been  at  first  only  the  expres- 
sion of  kinship.  The  central  and  most  sacred  worship  of  each 
group  of  men,  whether  family  or  tribe,  was  the  worship  of  ances- 
tors. At  the  family  or  communal  altar  the  worshipper  came  into 
the  presence  of  the  shades  of  the  great  dead  of  his  family -or  race. 
To  them  he  did  homage;  from  them  he  craved  protection  and 
guidance.  The  adopted  man,  therefore,  when  received  into  this 
hallowed  communion  with  the  gods  of  the  family,  accepted  its 
fathers  as  his  own,  and  took  upon  himself  the  most  solemn 
duties  and  acquired  the  most  sacred  privileges  of  kinship.  So, 
too,  of  the  family  adopted  into  the  gens,  or  the  gens  received  into 
the  tribe.  The  new  group  accepted  the  ancestry  by  accepting  the 
worship  of  the  adopting  House  or  community. 

Religion  was  thus  quite  inseparably  linked  with  kinship.  It 
may  be  said  to  have  been  the  thought  of  which  kinship  was  the 
embodiment.  It  was  the  sign  and  seal  of  the  common  blood,  the 
expression  of  its  oneness,  its  sanctity,  its  obligations.  He  who 
had  entered  into  the  bonds  of  this  religion  had,  therefore,  entered 
into  the  heart  of  kinship  and  taken  of  its  life-blood.  His  blood- 
relationship  was  thus  rendered  no  fiction  at  all  to  the  thought  of 
that  day,  but  a  solemn  verity,  to  which  every  religious  ceremo- 
nial bore  impressive  witness. 

The  Bonds  of  Religion  and  Precedent.  —  The  results  of  such 
a  system  of  life  and  thought  were  most  momentous.  It  is  com- 
monplace now  to  remark  upon  English  regard  for  precedent,  and 
upon  the  interesting  development  of  ' common'  and  'case'  law. 
But  not  even  an  Englishman  or  an  American  can  easily  conceive 
of  any  such  reverential  regard  for  precedent  as  must  have  resulted 
from  a  canonization  of  ancestors.  We  have  ourselves  in  a  meas- 
ure canonized  our  own  forefathers  of  the  revolutionary  era,  wor- 
shipping them  around  fourth  of  July  altars,  to  the  great  benefit 
both  of  our  patriotism  and  of  our  political  morality.  But  the  men 


16  THE   EARLIEST    FORMS    OF    GOVERNMENT. 

of  '76,  we  are  all  willing  to  acknowledge,  were  at  their  greatest 
only  men.  The  ancestor  of  the  primitive  man  became,  on  the 
contrary,  a  god,  and  a  god  of  undying  power.  His  spirit  lived 
on  to  bless  or  to  curse.  His  favor  had  to  be  propitiated,  his 
anger  appeased.  And  herein  was  a  terribly  effective  sanction 
for  precedent.  It  was  no  light  matter  to  depart  from  the  prac- 
tices of  these  potent  ancestors.  To  do  so  was  to  run  in  the  face 
of  the  deities.  It  was  to  outrage  all  religious  feeling,  to  break 
away  from  all  the  duties  of  spiritual  kinship.  Precedent  was 
under  such  circumstances  imperative.  Precedent  of  course  soon 
aggregated  into  custom,  —  such  custom  as  it  is  now  scarcely  pos- 
sible to  conceive  of,  —  a  supreme,  uniform,  imperious,  infrangible 
rule  of  life  which  brought  within  its  inexorable  commands  every 
detail  of  daily  conduct. 

The  Reign  of  Custom.  —  This  reign  of  customary  law  was 
long  and  decisive.  Its  tendency  was  to  stiffen  social  life  into  a 
formula.  It  left  almost  no  room  at  all  for  the  play  of  individu- 
ality. The  family  was  a  despotism,  society  a  routine.  There 
was  for  each  man  a  rigorous  drill  of  conformity  to  the  custom  of 
his  tribe  and  house.  Superstition  strengthened  every  cord  and 
knot  of  the  network  of  observance  which  bound  men  to  the  prac- 
tices of  their  fathers  and  their  neighbors.  That  tyranny  of  social 
convention  which  men  of  independent  or  erratic  impulse  nowa- 
days find  so  irksome,  —  that  <  tyranny  of  one's  next-door  neigh- 
bor' against  which  there  are  now  and  again  found  men  bold 
enough  to  rebel,  —  had  its  ideal  archetype  in  this  rigid  uniformity 
of  custom  which  held  ancient  society  in  hard  crystallization. 

Fixity  of  System  the  Rule,  Change  the  Exception.  —  Such 
was  the  discipline  that  moulded  the  infancy  of  political  society : 
within  the  family,  the  supreme  will  of  the  father;  outside  the 
family;  the  changeless  standards  of  religious  opinion.  The  ten- 
dency, of  course,  was  for  custom  to  become  fixed  in  a  crust  too 
solid  ever  to  be  broken  through.  In  the  majority  of  cases,  more- 
over, this  tendency  was  fulfilled.  Many  races  have  never  come  out 
of  this  tutelage  of  inexorable  custom.  Many  others  have  advanced 
only  so  far  beyond  it  as  those  caste  systems  in  which  the  law  of 
status  and  the  supremacy  of  immemorial  custom  have  worked  out 
their  logical  result  in  an  unchanging  balance  of  hereditary  classes. 


THE    EARLIEST    FORMS    OF    GOVERNMENT.  17 

The  majority  of  mankind  have  remained  stationary  in  one  01 
another  of  the  earliest  stages  of  political  development,  their  laws 
now  constituting  as  it  were  ancient  records  out  of  which  the 
learned  may  rewrite  the  early  history  of  those  other  races  whom 
primitive  custom  did  not  stagnate,  but  whose  systems  both  of 
government  and  of  thought  still  retain  many  traces  (illegible 
without  illumination  from  the  facts  of  modern  savage  life)  of  a 
similar  infancy.  Stagnation  has  been  the  rule,  progress  the  ex- 
ception. The  greater  part  of  the  world  illustrates  in  its  laws  and 
institutions  what  the  rest  of  the  world  has  escaped ;  the  rest  of 
the  world  illustrates  what  favorable  change  was  capable  of  mak- 
ing out  of  the  primitive  practices  with  which  the  greater  part  of 
the  world  has  remained  per  force  content. 

Changes  of  System  outrun  Changes  of  Idea.  —  The  original 
likeness  of  the  progressive  races  to  those  which  have  stood  still 
is  witnessed  by  that  persistency  of  idea  of  which  I  have  already 
spoken.  Progress  has  brought  nations  out  of  the  primitive  prac- 
tices vastly  more  rapidly  than  it  has  brought  them  out  of  the 
primitive  ideas  of  political  society.  Practical  reform  has  now 
and  again  attained  a  speed  that  has  never  been  possible  to  thought. 
Instances  of  this  so  abound  in  the  daily  history  of  the  most  pro- 
gressive nations  of  the  world  of  to-day  that  it  ought  not  to  be 
difficult  for  us  to  realize  its  validity  in  the  world  of  the  first  days 
of  society.  Our  own  guilds  and  unions  and  orders,  merely  volun- 
tary and  conventional  organizations  as  they  are,  retain  in  their 
still  vivid  sense  of  the  brotherhood  of  their  members  at  least  a 
reminiscence  of  the  ideas  of  that  early  time  when  kinship  was 
the  only  conceivable  basis  of  association  between  man  and  man, 
when  "  each  assemblage  of  men  seems  to  have  been  conceived  as 
a  Family."1  In  England  political  change  has  made  the  great 
strides  of  the  last  two  centuries  without  making  the  Grown 
any  less  the  central  object  of  the  theoretical  or  lawyerly  concep- 
tion of  the  English  constitution.  Every  day  witnesses  impor- 
tant extensions  and  even  alterations  of  the  law  in  our  courts 
under  the  semblance  of  a  simple  application  of  old  rules. 
Circumstances  alter  principles  as  well  as  cases,  but  it  is  only  the 
cases  which  are  supposed  to  be  altered.  The  principles  remain, 

1  Maine,  Early  History  of  Institutions,  p.  232. 


18       THE  EARLIEST  FORMS  OF  GOVERNMENT. 

in  form,  the  same.  Men  still  carry  their  brides  on  wedding 
journeys,  although  the  necessity  for  doing  so  ceased  with  the 
practice,  once  general,  of  stealing  a  bride.  'Good  blood'  still 
continues  to  work  wonders,  though  achievement  has  come  to  be 
the  only  real  patent  of  nobility  in  the  modern  world.  In  a  thou- 
sand ways  we  are  more  advanced  than  we  think  we  are. 

How  did  Change  enter  ?  —  The  great  question,  then,  is,  How 
did  change  enter  at  all  that  great  nursery  of  custom  in  which  all 
nations  once  wore  short  clothes,  and  in  which  so  many  nations 
still  occupy  themselves  with  the  superstitions  and  the  small  play 
of  childhood  ?  How  did  it  come  about  that  some  men  became 
progressive,  while  most  did  not  ?  This  is  a  question  by  no  means 
easy  to  answer,  but  there  are  probabilities  which  may  throw  some 
light  upon  it. 

Differences  of  Custom.  —  In  the  first  place,  it  is  not  prob- 
able that  all  the  groups  of  men  in  that  early  time  had  the  same 
customs.  Custom  was  doubtless  as  flexible  and  malleable  in  its 
infancy  as  it  was  inflexible  and  changeless  in  its  old  age.  In 
proportion  as  group  separated  from  group  in  the  restless  days 
of  the  nomadic  life,  custom  would  become  differentiated  from 
custom.  Then,  after  first  being  the  cause,  isolation  would  become 
the  natural  result  of  differences  of  life  and  belief.  A  family  or 
tribe  which  had  taken  itself  apart  and  built  up  a  practice  and 
opinion  all  its  own  would  thereby  have  made  itself  irrevocably 
a  stranger  to  its  one-time  kinsmen  of  other  tribes.  When  its  life 
did  touch  their  life,  it  would  touch  to  clash,  and  not  to  harmonize 
or  unite.  Greeks,  Romans,  Celts,  had  probably  once  been  a  single 
people ;  but  how  unlike  did  they  become  ! 

Antagonism  between  Customs.  —  We  need  not  specially 
spur  our  imaginations  to  realize*  how  repugnant,  how  naturally 
antagonistic,  to  each  other  families  or  tribes  or  races  would  be 
rendered  by  differences  of  custom.  "  We  all  know  that  there  is 
nothing  that  human  beings  (especially  when  in  a  low  state  of 
culture)  are  so  little  disposed  to  tolerate  as  divergencies  of  cus- 
tom," says  Mr.  Hamerton,  who  is  so  sure  of  the  fact  that  he  does 


THE  EARLIEST  FORMS  OF  GOVERNMENT.      19 

not  stop  to  illustrate  it.  How  '  odd/  if  not  *  ridiculous/  the  ways 
of  life  and  the  forms  of  belief  often  seem  to  us  in  a  foreign 
country,  —  how  instinctively  we  pronounce  them  inferior  to  our 
own !  The  Chinaman  manages  his  rice  quite  as  skilfully  with 
his  '  chop-sticks '  as  we  manage  ours  with  our  forks ;  and  yet  how 
*  queer,'  how  '  absurd '  chop-sticks  are !  And  so  also  in  the 
weightier  matters  of  social  and  religious  practice. 

Competition  of  Customs.  —  To  the  view  of  the  primitive 
man  all  customs,  great  or  small,  were  matters  of  religion.  His 
whole  life  was  an  affair  of  religion.  For  every  detail  of  conduct 
he  was  accountable  to  his  gods  and  to  the  religious  sentiment 
of  his  own  people.  To  tolerate  any  practices  different  from  those 
which  were  sanctioned  by  the  immemorial  usage  of  the  tribe  was 
to  tolerate  impiety.  It  was  a  matter  of  the  deepest  moment, 
therefore,  with  each  tribal  group  to  keep  itself  uncontaminated 
by  alien  custom,  to  stamp  such  custom  out  wherever  and  when- 
ever it  could  be  discovered.  That  was  a  time  of  war,  and  war 
meant  a  competition  of  customs.  The  conqueror  crushed  out  the 
practices  of  the  conquered  and  compelled  them  to  conform  to  his 
own. 

The  Better  prevail.  —  Of  course  in  such  a  competition  the 
better  custom  would  prevail  over  the  worse.1  The  patriarchal 
family,  with  its  strict  discipline  of  the  young  men  of  the  tribe, 
would  unquestionably  be  "the  best  campaigning  family,"  — 
would  supply  the  best  internal  organization  for  war.  Hence, 
probably,  the  national  aspect  of  the  world  to-day:  peoples  of 
patriarchal  tradition  occupying  in  unquestioned  ascendency  the 
choicest  districts  of  the  earth ;  all  others  thrust  out  into  the  heats 
or  colds  of  the  less-favored  continents,  or  crowded  into  the  for- 
gotten corners  and  valley-closets  of  the  world.  So,  too,  with  the 
more  invigorating  and  sustaining  religions.  Those  tribes  which 
were  least  intimidated  by  petty  phantoms  of  superstition,  least 
hampered  by  the  chains  of  empty  but  imperative  religious  cere- 
monial, by  the  engrossing  observance  of  times  and  seasons,  having 
greater  confidence  in  their  gods,  would  have  greater  confidence  in 
themselves,  would  be  freer  to  win  fortune  by  their  own  hands, 

1  For  the  best  development  of  the  whole  idea  of  this  paragraph  and  others 
In  this  connection,  see  Bagehot,  Physics  and  Politics,  Chap.  H. 


20        THE  EARLIEST  FORMS  OF  GOVERNMENT. 

instead  of  passively  seeking  it  in  the  signs  of  the  heavens  or  in 
the  aspects  of  nearer  nature;  and  so  would  be  the  surer  con- 
querors of  the  earth.  Religion  and  the  family  organization  were 
for  these  early  groups  of  kindred  men  the  two -indexes  of  charac- 
ter. In  them  was  contained  inferiority  or  superiority.  The  most 
serviceable  customs  won  the  day. 

Isolation,  Stagnation.  —  Absolute  isolation  for  any  of  these 
early  groups  would  of  course  have  meant  stagnation ;  just  as 
surely  as  contact  with  other  groups  meant  war.  The  world, 
accordingly,  abounds  in  stagnated  nationalities ;  for  it  is  full  of 
instances  of  isolation.  The  great  caste  nations  are  examples.  It 
is,  of  course,  only  by  a  figure  of  speech  that  we  can  speak  of  vast 
peoples  like  those  of  China  and  India  as  isolated,  though  it  is 
scarcely  a  figure  of  speech  to  say  that  they  are  stagnated.  Still 
in  a  very  real  sense  even  these  populous  nations  were  isolated. 
We  may  say,  from  what  we  discern  of  the  movements  of  the 
nations  from  their  original  seats,  that  the  races  of  China  and 
India  were  the  '  back-water  '  from  the  great  streams  of  migration. 
Those  great  streams  turned  towards  Europe  and  left  these  out- 
lying waters  to  subside  at  their  leisure.  In  subsiding  there  was 
no  little  commotion  amongst  them.  There  were  doubtless  as 
many  intertribal  wars  in  the  early  history  of  China  before  the 
amalgamation  of  the  vast  kingdom  as  there  have  been  in  the  his- 
tory of  India.  That  same  competition  of  custom  with  custom 
which  took  place  elsewhere,  also  took  place  there.  But  the  tribes 
which  pressed  into  China  were  probably  from  the  first  much  of  a 
kind,  with  differing  but  not  too  widely  contrasted  customs,  which 
made  it  possible  for  them  to  assume  at  a  now  very  remote  period 
a  uniformity  of  religion  and  of  social  organization  never  known 
amongst  the  peoples  that  had  gone  to  the  West ;  so  that,  before 
the  history  that  the  rest  of  the  world  remembers  had  begun, 
China's  wall  had  shut  her  in  to  a  safe  stagnation  of  monotonous 
uniformity.  The  great  Indian  castes  were  similarly  set  apart  in 
their  vast  peninsula  by  the  gigantic  mountains  which  piled  them- 
selves between  them  and  the  rest  of  the  continent.  The  later 
conquests  which  China  and  India  suffered  at  the  hands  of  Oriental 
invaders  resulted  in  mere  overlordships,  which  changed  the  desti- 
nation of  taxes,  but  did  not  touch  the  forms  of  local  custom. 


THE  EARLIEST  FORMS  OF  GOVERNMENT.       21 

Movement  and  Change  in  the  West.  —  It  is  easy  to  imagine 
a  rapid  death-rate,  or  at  least  an  incessant  transformation,  amongst 
the  customs  of  those  races  which  migrated  and  competed  in  the 
West.  There  was  not  only  the  contact  with  each  other  which 
precipitated  war  and  settled  the  question  of  predominance  between 
custom  and  custom ;  there  was  also  the  slow  but  potent  leaven 
of  shifting  scene  and  changing  circumstance.  The  movement  of 
the  peoples  was  not  the  march  of  a  host.  It  was  only  the  slow 
progress  of  advancing  races,  its  stages  often  centuries  long,  its 
delays  fruitful  of  new  habits  and  new  aspirations.  We  have, 
doubtless,  a  type  of  what  took  place  in  those  early  days  in  the 
transformation  of  the  Greeks  after  they  had  come  down  to  the 
sea.  We  can  dimly  see  them  beginning  a  new  life  there.  Slowly 
they  acquired  familiarity  with  tlu-ir  new  neighbor,  the  sea.  They 
learned  its  moods.  They  imagined  new  gods  breathing  in  its 
mild  or  storming  in  its  tempestuous  winds.  They  at  length 
trusted  themselves  to  its  mercy  in  boats.  The  handling  of  boats 
made  them  sailors ;  and,  lured  from  island  to  island  across  that 
inviting  sea,  they  reached  those  later  homes  of  their  race  in  Asia 
Minor.  And  they  reached  this  new  country  changed  men,  their 
hearts  strengthened  for  bolder  adventure,  their  hands  quick  with 
a  readier  skill,  their  minds  opened  to  greater  enthusiasms  and  en- 
riched with  warmer  imaginings,  their  whole  nature  profoundly 
affected  by  contact  with  Father  ^Egeus. 

Migration  and  Conquest.  —  And  so,  to  a  greater  or  less 
extent,  it  must  have  been  with  other  races  in  their  movements 
toward  their  final  seats.  Not  only  the  changes  of  circumstance 
and  the  exigencies  of  new  conditions  of  life,  but  also  the  con- 
quests necessarily  incident  to  those  days  of  migration,  must  have 
worked  great,  though  slow,  alterations  in  national  character.  We 
know  the  Latins  to  have  been  of  the  same  stock  with  the  Greeks ; 
but  by  the  time  the  Latins  had  reached  Italy  they  were  already 
radically  different  in  -habit,  belief,  and  capacity  from  the  Greeks, 
who  had,  by  other  routes,  reached  and  settled  Magna  Graecia. 
Conquest  changes  not  only  the  conquered,  but  also  the  con- 
querors. Insensibly,  it  may  be,  but  deeply,  they  are  affected 


22  THE  EARLIEST   FORMS   OF   GOVERNMENT. 

by  the  character  of  the  subdued  or  absorbed  races.  Norman  does 
not  merge  with  Saxon  without  getting  Saxon  blood  into  his  own 
veins,  and  Saxon  thoughts  into  his  own  head ;  neither  had  Saxon 
overcome  Celt  without  being  himself  more  or  less  taken  captive 
by  Celtic  superstition.  And  these  are  but  historical  instances  of 
what  must  have  been  more  or  less  characteristic  of  similar  events 
in  '  prehistoric '  times. 

Intertribal  Imitation. — There  must,  too,  have  been  among 
the  less  successful  or  only  partially  successful  races  a  powerful 
tendency  towards  imitation  constantly  at  work,  —  imitation  of  the 
institutions  of  their  more  successful  neighbors  and  rivals.  Just 
as  we  see,  in  the  histories  of  the  Old  Testament,  frequent  instances 
of  peoples  defeated  by  Jewish  arms  incontinently  forsaking  their 
own  divinities  and  humbly  commending  themselves  to  the  God 
of  Israel,  so  must  many  another  race,  defeated  or  foiled  in  un- 
recorded wars,  have  forced  themselves  to  learn  the  customs  in 
order  that  they  might  equal  the  success  of  rival  races. 

Individual  Initiative  and  Imitation.  —  And  this  impulse 
towards  imitation,  powerful  as  between  group  and  group,  would 
of  course,  in  times  of  movement  and  conquest,  be  even  more 
potent  amongst  individual  men.  Such  times  would  be  rich  with 
opportunity  for  those  who  had  energy  and  enterprise.  Many  a 
great  career  could  be  carved  out  of  the  events  of  days  of  steady 
achievement.  Men  would,  as  pioneers  in  a  new  country  or  as 
leaders  in  war,  be  more  or  less  freed  from  the  narrow  restrictions 
of  hard  and  fast  custom.  They  could  be  unconventional.  Their 
individual  gifts  could  have  play.  Each  success  would  not  only 
establish  their  right  to  be  themselves,  but  would  also  raise  up 
after  them  hosts  of  imitators.  New  types  would  find  acceptance 
in  the  national  life ;  and  so  a  new  leaven  would  be  introduced. 
Individual  initiative  would  at  last  be  permitted  a  voice,  even  as 
against  immemorial  custom. 

Institutional  Changes :  Choice  of  Rulers.  —  It  is  easy  to  see 
how,  under  the  bracing  influences  of  race  competition,  such  forces 
of  change  would  operate  to  initiate  and  hasten  a  progress  towards 
the  perfecting  of  institutions  and  the  final  abolition  of  slavery  to 
habit.  And  it  is  no  less  plain  to  see  how  such  forces  of  change 
would  affect  the  constitution  of  government.  It  is  evident  that, 


THE  EARLIEST  FORMS  OF  GOVERNMENT.        23 

as  has  been  said  (p.  19),  the  patriarchal  family  did  furnish  the 
best  campaigning  materials,  and  that  those  races  whose  primitive 
organization  was  of  this  type  did  rapidly  come  to  possess  the 
'•'  rnost-competed-for "  parts  of  the  earth.  They  did  come  to  be 
the  chief,  the  central  races  of  history.  But  race  aggregations, 
through  conquest  or  adoption,  must  have  worked  considerable 
changes  in  the  political  bearings  of  the  patriarchal  principle. 
The  direct  line  of  male  descent  from  the  reputed  common  pro- 
genitor of  the  race  could  hardly  continue  indefinitely  to  be  ob- 
served in  filling  the  chieftainship  of  the  race.  A  distinct  element 
of  choice—  of  election  —  must  have  crept  in  at  a  very  early  period. 
The  individual  initiative  of  which  I  have  spoken,  contributed 
very  powerfully  to  effect  this  change.  The  oldest  male  of  the 
hitherto  reigning  family  was  no  longer  chosen  as  of  course,  but 
the  wisest  or  the  bravest.  It  was  even  open  to  the  national 
choice  to  go  upon  occasion  altogether  outside  this  succession  and 
choose  a  leader  of  force  and  resource  from  some  other  family. 

Hereditary  replaced  by  Political  Magistracy.  —  Of  course 
mere  growth  had  much  to  do  with  these  transformations.  As 
tribes  grew  into  nations,  by  all  the  processes  of  natural  and 
artificial  increase,  all  distinctness  of  mutual  blood-relationship 
faded  away.  Direct  common  lines  of  descent  became  hopelessly 
obscured.  Cross-kinships  fell  into  inextricable  confusion.  Family 
government  and  race  government  became  necessarily  divorced,  — 
differentiated.  The  state  continued  to  be  conceived  as  a  Family ; 
but  the  headship  of  this  huge  and  complex  family  ceased  to  be 
natural  and  became  political.  So  soon  as  hereditary  title  was 
broken  in  upon,  the  family  no  longer  dominated  the  state;  the 
state  at  last  dominated  the  family.  It  often  fell  out  that  a  son, 
absolutely  subject  to  his  father  in  the  family,  was  by  election 
made  master  of  his  father  outside  the  family,  in  the  state.  Politi- 
cal had  at  least  begun  to  grow  away  from  domestic  authority. 

Summary.  —  Enough  has  been  said  here  to  make  plain  the 
approaches  to  those  systems  of  government  with  which  we  are 
familiar  in  the  modern  world.  We  can  understand  how  custom 
crystallized  about  the  primitive  man  ;  how  in  the  case  of  the  ma- 
jority of  mankind  it  preserved  itself  against  all  essential  change ; 
how  with  the  favored  minority  of  the  race  it  was  broken  by  war, 


24  THE   EARLIEST   FORMS   OF   GOVERNMENT. 

altered  by  imperative  circumstance,  modified  by  imitation,  and 
infringed  by  individual  initiative ;  how  change  resulted  in  prog- 
ress ;  and  how,  at  last,  kinsmen  became  fellow-citizens. 


SOME  REPRESENTATIVE  AUTHORITIES. 

Bachofen,  Das  Mutterrecht. 

Bagehot,  Walter,  Physics  and  Politics,  N.  Y.,  1884. 

Coulanges,  Fustel  de,  The  Ancient  City,  Boston,  1882. 

Darwin,  Charles,  The  Origin  of  Species,  2  vols.,  London,  1888. 

Draper,  J.  W.,  History  of  the  Intellectual  Development  of  Europe,  5th 
ed.,  N.  Y.,  1870. 

Farnell,  L.  R.,  Cults  of  the  Greek  States,  5  vols.,  Oxford,  1896-1909. 

Ford,  H.  J.,  The  Natural  History  of  the  State,  Princeton,  1915. 

Freeman,  E.  A.,  Comparative  Politics,  London,  1873. 

Hearn,  W.  E.,  The  Aryan  Household,  London,  1879. 

Howard,  G.  E.,  History  of  Matrimonial  Institutions,  Chicago,  1904. 

Huxley,  T.  H.,  Evidence  as  to  Man's  Place  in  Nature,  London,  1863. 

Lang,  Andrew,  Custom  and  Myth,  London,  1885 ;  and  article  "  Family," 
in  the  Encyclopaedia  Britannica. 

Lecky,  W.  E.  H.,  History  of  European  Morals,  3d  ed.,  N.  Y.,  1913. 

Letourneau,  Ch.,  The  Evolution  of  Marriage,  N.  Y.,  3d  ed.,  London  and 
N.Y.,  1911. 

Lord  Avebury,  The  Origin  of  Civilization  and  the  Primitive  Condition  of 
Man,  6th  ed.,  London,  1902 ;  and  Prehistoric  Times,  7th  ed.,  London, 
1913. 

Lyall,  Sir  A.  C.,  Asiatic  Studies,  Religious  and  Social,  London,  1882. 

McLennan,  J.  F.,  The  Patriarchal  Theory,  London,  1885 ;  and  Studies  in 
Ancient  History,  London,  1886  ;  Studies  in  Ancient  History,  Second 
Series,  London  and  N.  Y.,  1896. 

Maine,  Sir  H.  S.,  Ancient  Law,  with  notes  by  Sir  Frederick  Pollock,  4th 
American  from  10th  London  ed.,  N.  Y.,  1885 ;  Early  Law  and  Cus- 
tom, N.  Y.,  1883,  especially  Chap.  VII. ;  Early  History  of  Institutions, 
N".  Y.,  1875 ;  and  Village  Communities  in  the  East  and  West,  N.  Y., 
1880. 

Mayne,  J.  D.,  Hindu  Law  and  Custom,  Madras,  1888. 

Morgan,  L.  H.,  Ancient  Society,  London,  1877. 

Peschel,  O.,  The  Races  of  Man,  trans.  London,  1876. 

Smith,  W.  Robertson,  Marriage  and  Kinship  in  Early  Arabia,  Cambridge, 
1885. 


THE    EARLIEST    FORMS    OF    linVKIINMKNT.          .        25 

Spencer,  H.,  Principles  of  Sociology,  Vol.  I.,  Part  III.  ;  "  Ceremonial  In- 

stitutions," and  "  Political  Institutions." 
Spencer  ami  fi'Hhn,  The  Native  Tribes  of  Central  Australia. 
•SW/v,  C.  N.,  Tin-  Primitive  Family,  N.  Y.,  1889. 
Tyler,  E.  B.,  Early  History  of  Mankind,  London,  l*7s  ;  Primitive  Culture, 

London,  1871,  3d  ed.,  1891. 
Wtttrni«ir<-i,  Kdwa^d,  History  of  Human  Marriage,  London,  1891. 

The  classical  statements  of  the  contract  theory  of  the  origin  of  gov- 
ernment will  be  found  in 


ke.r,  Ecclesiastical  Polity. 
Hobbes,  Leviathan. 

Locke,  John,  Essays  on  Civil  Government. 
Rousseau,  J.  J.,  The  Social  Contract. 


II. 

NATURE  AND  FORMS   OF  GOVERNMENT 


Government  rests  upon  Authority  and  Force.  —  The  es- 
sential characteristic  of  all  government,  whatever  its  form,  is 
authority.  There  must  in  every  instance  be,  on  the  one  hand, 
governors,  and,  on  the  other,  those  who  are  governed.  And  the 
authority  of  governors,  directly  or  indirectly,  rests  in  all  cases 
ultimately  on  force.  Government,  in  its  last  analysis,  is  organ- 
ized force.  Not  necessarily  or  invariably  organized  armed  force, 
but  the. will  of  a  few  men,  of  many  men,  or  of  a  community  pre- 
pared by  organization  to  realize  its  own  purposes  with  reference 
to  the  common  affairs  of  the  community ;  organized,  that  is,  to 
rule,  to  dominate.  The  machinery  of  government  necessary  to 
such  an  organization  consists  of  instrumentalities  fitted  to 
enforce  in  the  conduct  of  the  common  affairs  of  a  community 
the  will  of  the  ruling  men:  the  ruling  minority,  or  the  ruling 
majority. 

Not  necessarily  upon  Obvious  Force.  —  This  is  not,  how- 
ever, to  be' interpreted  too  literally,  or  too  narrowly.  The  force 
behind  authority  must  not  be  looked  for  as  if  it  were  always  to 
be  seen  or  were  always  being  exercised.  That  there  is  authority 
lodged  with  ruler  or  magistrate  is  in  every  case  evident  enough: 
but  that  that  authority  rests  upon  force  is  not  always  a  fact  upon 
the  surface,  and  is  therefore  in  one  sense  not  always  practically 
significant.  In  the  case  of  any  particular  government,  the  force 
upon  which  the  authority  of  its  officers  rests  may  never  once  for 
generations  together  take  the  shape  of  armed  force.  Happily 
there  are  in  our  own  day  many  governments,  and  those  among 
the  most  prominent,  which  seldom  coerce  their  subjects,  seeming 
in  their  tranquil,  noiseless  operations  to  run  of  themselves.  They 

26 


KATURE   AND   FORMS   OF   GOVERNMENT.  27 

in  a  sense  operate  without  the  exercise  of  force.  But  there 
is  force  behind  them  none  the  less  because  it  never  shows  itself. 
The  better  governments  of  our  day,  —  those  which  rest,  not  upon 
the  armed  strength  of  governors,  but  upon  the  free  consent  of  the 
governed,  —  are  founded  upon  constitutions  and  laws  whose 
source  and  sanction  are  the  habit  of  communities.  The  force 
which  they  embody  is  not  the  force  of  a  dominant  dynasty  or  of 
a  prevalent  minority,  but  the  force  of  an  agreeing  majority. 
And  the  overwhelming  nature  of  this  force  is  evident  in  the  fact 
that  the  minority  very  seldom  challenge  its  exercise.  It  is  latent 
just  because  it  is  understood  to  be  omnipotent.  There  is  force 
behind  the  authority  of  the  elected  magistrate,  no  less  than 
behind  that  of  the  usurping  despot,  a  much  greater  force  behind 
the  President  of  the  United  States  than  behind  an  autocratic 
monarch.  The  difference  lies  in  the  display  of  coercive  power. 
Physical  force  is  the  prop  of  both,  though  in  the  one  it  is  the 
last,  while  in  the  other  it  is  the  first,  resort. 

The  Governing  Force  in  Ancient  and  in  Modern  Society. 
—  These  elements  of  authority  and  force  in  government  are  quite 
plain  to  be  seen  in  modern  society,  even  when  the  constitution 
of  that  society  is  democratic  ;  but  they  are  not  so  easily  discover- 
able upon  a  first  view  in  primitive  society.  It  is  common  nowa- 
days when  referring  to  the  affairs  of  the  most  progressive  nations 
to  speak  of  'government  by  public  opinion,'  'government  by  the 
popular  voice ' ;  and  such  phrases  possibly  describe  sufficiently 
well  the  full-grown  democratic  systems.  But  no  one  intends  such 
expressions  to  conceal  the  fact  that  the  majority,  which  utters 
'public  opinion,'  does  not  prevail  because  the  minority  are  con- 
vinced, but  because  they  are  outnumbered  and  have  against  them 
not  the  'popular  voice '  only,  but  the  'popular  power '  as  well,  — 
that  it  is  the  potential  might  rather  than  the  wisdom  of  the  ma- 
jority which  gives  it  its  right  to  rule.  When  once  majorities 
have  learned  to  have  opinions  and  to  organize  themselves  for  en- 
forcing them,  they  rule  by  virtue  of  power  no  less  than  do  despots 
with  standing  armies  or  concerting  minorities  dominating  unor- 
ganized majorities.  But,  though  it  was  clearly  opinion  which 
ruled  in  primitive  societies,  this  conception  of  the  might  of 
majorities  hardly  seems  to  fit  our  ideas  of  primitive  systems  of 


28  NATURE  AND   FORMS   OF   GOVERNMENT. 

government.  What  shall  we  say  of  them  in  connection  with  our 
present  analysis  of  government?  They  were  neither  democracies 
in  which  the  will  of  majorities  chose  the  ways  of  government, 
nor  despotisms,  in  which  the  will  of  an  individual  controlled,  nor 
oligarchies,  in  which  the  purposes  of  a  minority  prevailed. 
Where  shall  we  place  the  force  which  lay  behind  the  authority 
exercised  under  them?  Was  the  power  of  the  father  in  the  patri- 
archal family  power  of  arm,  mere  domineering  strength  of  will? 
What  was  the  force  that  sustained  the  authority  of  the  tribal 
chieftain  or  of  that  chief  of  chiefs,  the  king?  That  authority 
was  not  independent  of  the  consent  of  those  over  whom  it  was 
sxercised ;  and  yet  it  was  not  formulated  by  that  consent.  That 
3onsent  may  be  said  to  have  been  involuntary,  inbred.  It  was 
born  of  the  habit  of  the  race.  It  was  congenital.  It  consisted 
of  a  custom  and  tradition,  moreover,  which  bound  the  chief  no 
less  than  it  bound  his  subjects.  He  might  no  more  transgress  the 
unwritten  law  of  the  race  than  might  the  humblest  of  his  fellow- 
tribesmen.  He  was  governed  scarcely  less  than  they  were.  All 
were  under  bondage  to  strictly  prescribed  ways  of  life.  Where, 
chen,  lay  the  force  which  sanctioned  the  authority  of  chief  and 
sub-chief  and  father  in  this  society?  Not  in  the  will  of  the 
ruler:  that  was  bound  by  the  prescriptions  of  custom.  Not  in 
the  popular  choice :  over  that  too  the  law  of  custom  reigned. 

The  Force  of  the  Common  Will  in  Ancient  Society.  —  The 
real  residence  of  force  in  such  societies  as  these  can  be  most  easily 
discovered  if  we  look  at  them  under  other  circumstances.  Nations 
still  under  the  dominion  of  customary  law  have  within  historical 
times  been  conquered  by  alien  conquerors ;  but  in  no  such  case 
did  the  will  of  the  conqueror  have  free  scope  in  regulating  the 
affairs  of  the  conquered.  Seldom  did  it  have  any  scope  at  all. 
The  alien  throne  was  maintained  by  force  of  arms,  and  taxes  were 
mercilessly  wrung  from  the  subject  populations;  but  never  did 
the  despot  venture  to  change  the  customs  of  the  conquered  land. 
Its  native  laws  he  no  more  dared  to  touch  than  would  a  prince  of 
the  dynasty  which  he  had  displaced.  He  dared  not  play  with 
the  forces  latent  in  the  prejudices,  the  fanaticism  of  his  subjects. 
He  knew  that  those  forces  were  volcanic,  and  that  no  prop  of 
armed  men  could  save  his  throne  from  overthrow  and  destruction 


NATURE   AND    FORMS    OF    GOVERNMENT.  29 

should  they  once  break  forth.  He  really  had  no  authority  to 
govern,  but  only  a  power  to  despoil,  —  for  the  idea  of  government 
is  inseparable  from  the  conception  of  legal  regulation.  If,  there- 
fore, in  the  light  of  such  cases,  we  conceive  the  throne  of  such  a 
society  as  occupied  by  some  native  prince  whose  authority  rested 
upon  the  laws  of  his  country,  it  is  plain  to  see  that  the  real  force 
upon  which  authority  rests  under  a  government  so  constituted  is 
after  all  the  force  of  public  opinion,  in  a  sense  hardly  less  vividly 
real  than  if  we  spoke  of  a  modern  democracy.  The  law  inheres 
in  the  common  will:  and  it  is  that  law  upon  which  the  authority 
of  the  prince  is  founded.  He  rules  according  to  the  common 
will :  for  that  will  is,  that  immemorial  custom  be  inviolably  ob- 
served. The  force  latent  in  that  common  will  both  backs  and 
limits  his  authority. 

Public  Opinion,  Ancient  and  Modern.  —  The  fact  that  the 
public  opinion  of  such  societies  made  no  deliberate  choice  of  laws 
or  constitutions  need  not  confuse  the  analogy  between  that  public 
opinion  and  our  own.  Our  own  approval  of  the  government  under 
which  we  live,  though  doubtless  conscious  and  in  a  way  voluntary, 
is  largely  hereditary,  —  is  largely  an  inbred  and  inculcated  appro- 
bation. There  is  a  large  amount  of  mere  drift  in  it.  Conformity 
to  what  is  established  is  much  the  easiest  habit  in  opinion.  Our 
constructive  choice  even  in  our  own  governments,  under  which 
there  is  no  divine  canon  against  change,  is  limited  to  modifica- 
tions. The  generation  that  saw  our  federal  system  established 
may  have  imagined  themselves  out-of-hand  creators,  originators 
of  government;  but  we  of  this  generation  have  taken  what  was 
given  us,  and  are  not  controlled  by  laws  altogether  of  our  own 
making.  Our  constitutional  life  was  made  for  us  long  ago.  We 
are  like  primitive  men  in  the  public  opinion  which  preserves; 
though  unlike  them  in  the  public  opinion  which  alters  our  insti- 
tutions. Their  stationary  common  thought  contained  the  generic 
forces  of  government  no  less  than  does  our  own  progressive  public 
thought. 

The  True  Nature  of  Government.  —  What,  then,  in  the 
last  analysis,  is  the  nature  of  government?  If  it  rests  upon 
authority  and  force,  but  upon  authority  which  depends  upon  the 
acquiescence  of  the  general  will  and  upon  force  suppressed, 


30  NATURE   AND    FORMS    OF    GOVERNMENT. 

latent,  withheld  except  under  extraordinary  circumstances,  what 
principle  lies  behind  these  phenomena,  at  the  heart  of  govern- 
ment? The  answer  is  hidden  in  the  nature  of  Society  itself. 
Society  is  in  no  sense  artificial ;  it  is  as  truly  natural  as  the 
individual  man  himself.  As  Aristotle  said,  man  is  by  nature 
a  social  animal ;  his-  social  function  is  as  normal  with  him  as  is 
his  individual  function.  Society,  therefore,  is  compounded  of 
the  common  habit  and  is  an  evolution  of  experience,  an  interlaced 
growth  of  tenacious  relationships,  a  compact,  living  whole, 
structural,  not  mechanical. 

Government  an  Organ  of  Society.  —  Government  is 
merely  the  executive  organ  of  society,  the  organ  through  which 
its  habit  acts,  through  which  its  will  becomes  operative,  through 
which  it  adapts  itself  to  its  environment  and  works  out  for  itself 
a  more  effective  life.  There  is  clear  reason,  therefore,  why  the 
disciplinary  action  of  society  upon  the  individual  is  exceptional ; 
clear  reason  also  why  the  power  of  the  despot  must  recognize 
certain  ultimate  limits  and  bounds ;  and  clear  reason  why  sudden 
or  violent  changes  of  government  lead  to  equally  violent  and 
often  fatal  reactions  and  revolutions.  It  is  only  the  exceptional 
individual  who  is  not  held  fast  to  the  common  habit  of  social 
duty  and  comity.  The  despot's  power,  like  the  potter's,  is 
limited  by  the  characteristics  of  the  materials  in  which  he  works, 
of  the  society  which  he  manipulates  ;  and  change  which  roughly 
breaks  with  the  common  thought  will  lack  the  sympathy  of  that 
thought,  will  provoke  its  opposition,  and  will  inevitably  be 
crushed  by  that  opposition.  Society  can  be  changed  only  by 
evolution,  and  revolution  is  the  antipode  of  evolution.  The 
public  order  is  preserved  because  order  inheres  in  the  character 
of  society. 

The  Forms  of  Government :  their  Significance,  —  The 
forms  of  government  do  not  affect  the  essence  of  government : 
the  bayonets  of  the  tyrant,  the  quick  concert  and  superior  force 
of  an  organized  minority,  the  latent  force  of  a  self-governed 
majority, — all  these  depend  upon  the  character  and  develop- 
ment of  the  community.  "The  obedience  of  the  subject  to  the 


NATl    i:K    AND     FOKMS    OF    <  JoYKItN  MKNT.  81 

sovereign  has  its  root  not  in  contract  but  in  force,  —  the  force 
of  the  sovereign  to  punish  disobedience  " ; l  but  that  force  must 
be  backed  by  the  general  habit  (pages  77,  80).  The  forms 
of  government  are,  nevertheless,  in  every  way  most  important 
to  be  observed,  for  the  very  reason  that  they  express  the  char- 
acter of  government,  and  indicate  its  history.  They  exhibit  the 
stages  of  political  development,  and  make  clear  the  necessary 
constituents  and  ordinary  purposes  of  government,  historically 
considered.  .  They  illustrate,  too,  the  sanctions  upon  which  it 
rests. 

Aristotle's  Analysis  of  the  Forms  of  Government.  —  It  has 
been  common  for  writers  on  politics  in  speaking  of  the  several 
forms  of  government  to  rewrite  Aristotle,  and  it  is  not  easy  to 
depart  from  the  practice.  For,  although  Aristotle's  enumeration 
was  not  quite  exhaustive,  and  although  his  descriptions  will  not 
quite  fit  modern  types  of  government,  his  enumeration  still  serves 
as  a  most  excellent  frame  on  which  to  hang  an  exposition  of  the 
forms  of  government,  and  his  descriptions  at  least  furnish  points 
of  contrast  between  ancient  and  modern  governments  by  observ- 
ing which  we  can  the  more  clearly  understand  the  latter. 

Aristotle  considered  Monarchy,  Aristocracy,  and  De- 
mocracy (Ochlocracy)  the  three  standard  forms  of  government. 
The  first  he  defined  as  the  rule  of  One,  the  second  as  the  rule  of 
the  Few,  the  third  as  the  rule  of  the  Many.2  Off  against  these 
standard  and,  so  to  say,  healthful  forms  he  set  their  degenerate 
shapes.  Tyranny  he  conceived  to  be  the  degenerate  shape  of 
Monarchy,  Oligarchy  the  degenerate  shape  of  Aristocracy,  and 
Anarchy  (or  mob-rule)  the  degenerate  shape  of  Democracy.  His 
observation  of  the  political  world  about  him  led  him  to  believe 
that  there  was  in  every  case  a  strong,  an  almost  inevitable,  ten- 
dency for  the  pure  forms  to  sink  into  the  degenerate. 

The  Cycle  of  Degeneracy  and  Revolution.  —  He  outlined 
a  cycle  of  degeneracies  and  revolutions  through  which,  as  he 
conceived,  every  State  of  long  life  was  apt  to  pass.  His  idea 
was  this.  The  natural  first  form  of  government  for  every  state 

1  John  Morley,  Rousseau,  Vol.  II., 'p.  184. 

2  Not  of  the  absolute  majority,  as  we  shall  see  presently  when  contrasting 
ancient  and  modern  democracy  (sees.  1403,  1406). 


32  NATURE    AND    FORMS    OF    GOVERNMENT. 

would  be  the  rule  of  a  monarch,  of  a  single  strong  man  with 
supreme  power.  This  monarch  would  usually  hand  on  his  king- 
dom to  his  'children.  They  might  confidently  be  expected  to  for- 
get those  pledges  and  those  views  of  the  public  good  which  had 
bound  and  guided  him.  Their  rule  would  sink  into  tyranny. 
At  length  their  tyranny  would  meet  its  decisive  check  at 
some  Runnymede.  There  would  be  revolt ;  and  the  princely 
leaders  of  revolt,  taking  government  into  their  own  hands,  would 
set  up  an  Aristocracy.  But  aristocracies,  though  often  public- 
spirited  and  just  in  their  youth,  always  decline,  in  their  later 
years,  into  a  dotage  of  selfish  oligarchy.  Oligarchy  is  even  more 
hateful  to  civil  liberty,  is  even  a  graver  hindrance  to  healthful 
civil  life  than  tyranny.  A  class  bent  upon  subserving  only  their 
own  interests  can  devise  injustice  in  greater  variety  than  can  a 
single  despot:  and  their  insolence  is  always  quick  to  goad  the 
many  to  hot  revolution.  To  this  revolution  succeeds  Democracy. 
But  Democracy  too  has  its  old  age  of  degeneracy,  —  an  old  age  in 
which  it  loses  its  early  respect  for  law,  its  first  amiability  of 
mutual  concession.  It  breaks  out  into  license  and  Anarchy,  and 
none  but  a  Caesar  can  bring  it  back  to  reason  and  order.  The 
cycle  is  completed.  The  throne  is  set  up  again,  and  a  new  series 
of  deteriorations  and  revolutions  begins. 

Modern  Contrasts  to  the  Aristotelian  Forms  of  Govern- 
ment. —  The  confirmations  of  this  view  furnished  by  the  history 
of  Europe  since  the  time  of  Aristotle  have  been  striking  and 
numerous  enough  to  render  it  still  oftentimes  convenient  as  a 
scheme  by  which  to  observe  the  course  of  political  history  even 
in  our  own  days.  But  it  is  still  more  instructive  to  contrast  the 
later  facts  of  political  development  with  this  ancient  exposition 
of  the  laws  of  politics.  Observe,  then,  the  differences  between 
modern  and  ancient  types  of  government,  and  the  likelihood  that 
the  historian  of  the  future,  if  not  of  the  present  and  the  imme- 
diate past,  will  have  to  record  more  divergencies  from  the  cycle 
of  Aristotle  than  correspondences  with  it. 

The  Modern  Absolute  Monarchy.  —  In  the  vast  absolute 
Monarchies  which  have  grown  up  in  Europe  since  Aristotle,  it 
is  evident  that  the  modern  monarch,  if  he  be  indeed  monarch,  has 


NATURE    AND    FORMS   OF    GOVERNMENT.  33 

a  much  deeper  and  wider  reach  of  power  than  had  the  ancient 
monarch.  The  monarch  of  our  day  is  a  Legislator;  the  ancient 
monarch  was  not.  Antique  society  may  be  said  hardly  to  have 
known  what  legislation  was.  Custom  was  for  it  the  law  of  pub- 
lic as  well  as  of  private  life:  and  custom  could  not  be  enacted. 
At  any  rate  ancient  monarchies  were  not  legislative.  The  des- 
pot issued  edicts,  —  imperative  commands  covering  particular 
cases  or  affecting  particular  individuals:  the  Koman  emperors 
were  among  the  first  to  .  promulgate  'constitutions,'  —  general 
rules  of  law  to  be  applied  universally.  The  modern  despot  can 
do  more  even  than  that.  He  can  regulate  by  his  command  pub- 
lic affairs  not  only  but  private  as  well,  —  can  even  upset  local 
custom  and  bring  all  his  subjects  under  uniform  legislative  con- 
trol. Nor  is  he  in  the  least  bound  to  observe  his  own  laws.  A 
word, —  and  that  his  own  word, —  will  set  them  aside:  a  word 
will  abolish,  a  word  restore,  them.  He  is  absolute  over  his  sub- 
jects not  only,  —  ancient  despots  were  that,  —  but  over  all  laws 
also,  —  which  no  ancient  despot  was. 

Of  course  these  statements  are  meant  to  be  taken  with  certain 
important  limitations.  The  modern  despot  as  well  as  the  ancient  is  bound 
by  the  habit  of  his  people.  He  may  change  laws,  but  he  may  not  change 
life  as  easily  ;  and  the  national  traditions  and  national  character,  the 
rural  and  commercial  habit  of  his  kingdom,  bind  him  very  absolutely. 
The  limitation  is  not  often  felt  by  the  monarch,  simply  because  he  haa 
himself  been  bred  in  the  atmosphere  of  the  national  life  and  unconsciously 
conforms  to  it. 

The  Modern  Monarchy  usually  'Limited.'  —  But  the 
absolute  monarchy  is  abnormal  in  the  Europe  of  to-day,  as 
abnormal  as  that  of  the  Turk,  —  a  belated  example  of  those 
crude  forms  of  politics  which  the  rest  of  Europe  has  outgrown. 
Turning  to  the  other  monarchies  of  to-day,  it  is  at  once  plain 
that  they  present  the  strongest  contrast  possible  to  any  absolute 
monarchy  ancient  or  modern.  In  Europe,  with  the  exception  of 
Germany  they  are  *  limited '  by  the  resolutions  of  a  popular 
parliament.1  The  people  have  a  distinct  and  often  an  imperative 
voice  in  the  conduct  of  public  affairs. 

Is  Monarchy  now  succeeded  by  Aristocracy?  —  And  what 
is  to  be  said  of  Aristotle's  cycle  in  connection  with  modern  mon- 

1  The  '  popular  '  parliament,  the  Reichstag,  in  Germany,  has  no  real  power 
to  '  limit '  the  autocratic  Kaiser, 


34  NATURE  AND   FORMS   OF   GOVERNMENT. 

archies?  Does  any  one  suppose  it  possible  that  when  the  des- 
potism of  the  Czar  falls  it  will  be  succeeded  by  an  aristocracy; 
or  that  when  the  modified  authority  of  the  emperors  of  Austria 
and  Germany  or  the  king  of  Italy  still  further  exchanges  sub- 
stance for  shadow,  a  limited  class  will  succeed  to  the  reality  of 
power?  Is  there  any  longer  any  place  between  Monarchy  and 
Democracy  for  Aristocracy?  Has  it  not  been  crowded  out  ?  . 

English  and  Ancient  Aristocracy  contrasted.  —  Indeed, 
since  the  extension  of  the  franchise  in  England  to  the  working 
classes,  no  example  of  a  real  Aristocracy  is  left  in  the  modern, 
world.  At  the  beginning  of  the  nineteenth  century  the  govern- 
ment of  England,  called  a  <  limited  monarchy,'  was  in  reality  an 
Aristocracy.  Parliament  and  the  entire  administration  of  the 
kingdom  were  in  the  hands  of  the  classes  having  wealth  or  nobility. 
The  members  of  the  House  of  Lords  and  the  Crown  together  con- 
trolled a  majority  of  the  seats  in  the  House  of  Commons.  England 
was  'represented'  by  her  upper  classes  almost  exclusively.  That 
Aristocracy  has  been  set  aside  by  the  Reform  Bills  of  1832, 
1867,  1885,  and  1918 ;  but  it  is  worth  while  to  look  back  to  it,  in 
order  to  contrast  a  modern  type  of  Aristocracy  with  those  ancient 
aristocracies  which  were  present  to  the  mind  of  Aristotle.  An 
ancient  Aristocracy  constituted  the  State;  the  English  aristocracy 
merely  controlled  the  State.  Under  the  widest  citizenship  known 
even  to  ancient  democracy  less  than  half  the  adult  male  subjects 
of  the  State  shared  the  franchise.  The  ancient  Democracy  itself 
was  a  government  by  a  minority.  The  ancient  Aristocracy  was 
a  government  by  a  still  narrower  minority;  and  this  narrow 
minority  monopolized  office  and  power  not  only,  but  citizenship 
as  well.  There  were  no  citizens  but  they.  They  were  the  State. 
Every  one  else  existed  for  the  State,  only  they  were  part  of  it. 
In  England  the  case  was  very  different.  There  the  franchise 
was  not  confined  to  the  aristocrats ;  it  was  only  controlled  by 
them.  Nor  did  the  aristocrats  of  England  consider  themselves 
the  whole  of  the  State.  They  were  quite  conscious, — and  quite 
content, — that  they  had  the  State  virtually  in  their  possession; 
but  they  looked  upon  themselves  as  holding  it  in  trust  for  the 
people  of  Great  Britain.  Their  legislation  was  in  fact  class 
legislation,  oftentimes  of  a  very  narrow  sort;  but  they  did  not 


NATURE    AND    FORMS    OF    GOVERNMENT.  35 

\ 

think  that  it  was.  They  regarded  their  rule  as  eminently  advan- 
tageous to  the  kingdom ;  and  they  unquestionably  had,  or  tried 
to  have,  the  real  interests  of  the  kingdom  at  heart.  They  led  the 
State,  but  did  not  constitute  it. 

Present  and  Future  Prevalence  of  Democracy.  —  If 
Aristocracy  seems  about  to  disappear,  Democracy  seems  about 
universally  to  prevail.  Ever  since  the  rise  of  popular  education 
in  the  last  century  has  assured  a  thinking  weight  to  the  masses 
of  the  people  everywhere,  the  advance  of  democratic  opinion  and 
the  spread  of  democratic  institutions  have  been  most  marked 
and  most  significant.  They  have  destroyed  almost  all  pure  forms 
of  Monarchy  and  Aristocracy  by  introducing  into  them  im- 
perative forces  of  popular  thought  and  the  concrete  institutions 
of  popular  representation  ;  and  they  promise  to  reduce  politics 
to  a  single  form  by  excluding  all  other  governing  forces  and 
institutions  but  those  of  a  wide  suffrage  and  a  democratic  repre- 
sentation, —  by  reducing  all  forms  of  government  to  Democracy. 

Differences  of  Form  between  Ancient  and  Modern 
Democracies.  —  The  differences  of  form  to  be  observed  between 
ancient  and  modern  Democracies  are  wide  and  important. 
Ancient  Democracies  were  '  immediate/  while  ours  are  '  mediate/ 
that  is  to  say,  representative.  Every  citizen  of  the  Athenian 
State,  —  to  take  that  as  a  type,  —  had  a  right  to  appear  and  vote 
in  proper  person  in  the  popular  assembly,  and  in  those  com- 
mittees of  that  assembly  which  acted  as  criminal  courts ;  the 
modern  voter  votes  for  a  representative  who  is  to  sit  for  him  in 
the  popular  chamber,  —  he  himself  has  not  even  the  right  of 
entrance  there.  This  idea  of  representation,  —  even  the  idea  of  a 
vote  by  proxy,  —  was  hardly  known  to  the  ancients  ;  but  among 
us  it  is  all-pervading.1  Even  the  elected  magistrate  of  an  ancient 
Democracy  was  not  looked  upon  as  a  representative  of  his  fellow- 
citizens.  He  was  the  State,  so  far  as  his  functions  went,  and  so 
long  as  his  term  of  office  lasted.  He  could  break  through  all 
law  or  custom,  if  he  dared.  It  was  only  when  his  term  had 
expired  and  he  was  again  a  private  citizen  that  he  could  be 
called  to  account.  There  was  no  impeachment  while  in  office. 
To  our  thought  all  elected  to  office, — whether  Presidents, 

i  Where  the  initiative  and  referendum  have  been  introduced,  the  electors 
vote  directly  upon  laws,  but  the  representative  system  has  been  continued. 


36  NATURE    AND    FORMS    OF    GOVERNMENT. 

ministers,  or  legislators, — are  representatives.  The  limitations 
as  to  the  size  of  the  State  involved  in  ancient  practices  and 
conceptions  is  obvious.  A  State  in  which  all  citizens  are  also 
legislators  must  of  necessity  be  small.  The  modern  representa- 
tive State  has  no  such  limitation.  It  may  cover  a  continent. 

Nature  of  Democracy,  Ancient  and  Modern.  —  The 
differences  of  nature  to  be  observed  between  ancient  and  mod- 
ern Democracies  are  no  less  wide  and  important.  The  ancient 
Democracy  was  a  class  government.  As  already  pointed  out, 
it  was  only  a  broader  Aristocracy.  It's  franchise  was  at  widest 
an  exclusive  privilege,  extending  only  to  a  minority.  There 
were  slaves  under  its  heel;  there  were  even  freedmen  who 
could  never  hope  to  enter  its  citizenship.  Class  subordination 
was  of  the  essence  of  its  constitution.  From  the  modern  Demo- 
cratic State,  on  the  other  hand,  both  slavery  and  class  subordina 
tion  are  excluded  as  inconsistent  with  its  theory,  not  only,  but, 
more  than  that,  as  antagonistic  to  its  very  being.  Its  citizenship 
is  as  wide  as  its  native  population ;  its  suffrage  as  wide  as  its 
qualified  citizenship,  —  it  knows  no  non-citizen  class.  And 
there  is  still  another  difference  between  the  Democracy  of 
Aristotle  and  the  Democracy  of  Tocqueville  and  Bentham.  The 
citizens  of  the  former  lived  for  the  State;  the  citizen  of  the 
latter  lives  for  himself,  and  the  State  is  for  him.  The  modern 
Democratic  State  exists  for  the  sake  of  the  individual ;  the  indi- 
vidual, in  Greek  conception,  lived  for  the  State.  The  ancient 
State  recognized  no  personal  rights,  —  all  rights  were  State 
rights;  the  modern  State  recognizes  no  State  rights  which  are 
independent  of  personal  rights. 

Growth  of  the  Democratic  Idea. — In  making  the  last 
statement  embrace  '  the  ancient  State '  irrespective  of  kind  and 
'  the  modern  State,'  of  whatever  form,  I  have  pointed  out  what 
may  be  taken  as  the  cardinal  difference  between  all  the  ancient 
forms  of  government  and  all  the  modern.  It  is  a  difference 
which  I  have  already  stated  in  another  way.  The  democratic 
idea  has  penetrated  more  or  less  deeply  all  the  advanced  systems 
of  government,  and  has  penetrated  them  in  consequence  of  that 
change  of  thought  which  has  given  to  the  individual  an  impor- 
tance quite  independent  of  his  membership  of  a  State.  I  can 


NATURE   AND   FORMS   OF   GOVERNMENT.  37 

here  only  indicate  the  historical  steps  of  that  change  of  thought; 
I  cannot  go  at  any  length  into  its  causes. 

Subordination  of  the  Individual  in  the  Ancient  State.  — 
We  have  seen  that,  in  the  history  of  political  society,  if  we  have 
read  that  history  aright,  the  rights  of  government,  —  the  magis- 
tracies and  subordinations  of  kinship,  —  antedate  what  we  now 
call  the  rights  of  the  individual.  A  man  was  at  first  nobody  in 
himself ;  he  was  only  the  kinsman  of  somebody  else.  The  father 
himself,  or  the  chief,  commanded  only  because  of  priority  in 
kinship :  to  that  all  rights  of  all  men  were  relative.  Society  was 
the  unit;  the  individual  the  fraction.  Man  existed  for  society. 
He  was  all  his  life  long  in  tutelage;  only  "society  was  old  enough 
to  take  charge  of  itself.  The  State  was  the  only  Individual. 

Individualism  of  Christianity  and  Teutonic  Institu- 
tions.—  There  was  no  essential  change  in  this  idea  for  centu- 
ries. Through  all  the  developments  of  government  down  to  the 
time  of  the  rise  of  the  Roman  Empire  the  State  continued,  in 
the  conception  of  the  western  nations  at  least,  to  eclipse  the 
individual.  Private  rights  had  no  standing  as  against  the  State. 
Subsequently  many  influences  combined  to  break  in  upon  this 
immemorial  conception.  Chief  among  these  influences  were 
Christianity  and  the  institutions  of  the  German  conquerors  of 
the  fifth  century.  Christianity  gave  each  man  a  magistracy  over 
himself  by  insisting  upon  his  personal,  individual  responsibility 
to  God.  For  right  living,  at  any  rate,  each  man  was  to  have  only 
his  own  conscience  as  a  guide.  In  these  deepest  matters  there 
must  be  for  the  Christian  an  individuality  which  no  claim  of  his 
State  upon  him  could  rightfully  be  suffered  to  infringe.  The 
German  nations  brought  into  the  Romanized  and  partially  Chris- 
tianized world  of  the  fifth  century  an  individuality  of  another 
sort,  —  the  idea  of  allegiance  to  individuals  (p.  101).  Perhaps 
their  idea  that  each  man  had  a  money-value  which  must  be  paid 
by  any  one  who  might  slay  him  also  contributed  to  the  process  of 
making  men  units  instead  of  State  fractions;  but  their  idea  of 
personal  allegiance  played  the  more  prominent  part  in  the  trans- 
formation of  society  which  resulted  from  their  western  conquests. 
The  Roman  knew  no  allegiance  save  allegiance  to  his  State.  He 
swore  fealty  to  his  imperator  as  to  an  embodiment  of  that  State, 


38  NATURE   AND   FORMS   OF   GOVERNMENT. 

not  as  to  an  individual.  The  Teuton,  on  the  other  hand,  bound 
himself  to  his  leader  by  a  bond  of  personal  service  which  the 
Roman  either  could  not  understand  or  understood  only  to  despise. 
There  were,  therefore,  individuals  in  the  German  State :  great 
chiefs  or  warriors  with  a  following,  (comitatus)  of  devoted  volun- 
teers ready  to  die  for  them  in  frays  not  directed  by  the  State,  but 
of  their  own  provoking  (pages  96-97).  There  was  with  all 
German  tribes  freedom  of  individual  movement  and  combination 
within  the  ranks.  When  the  German  settled  down  as  master 
amongst  the  Romanized  populations  of  western  and  southern 
Europe,  his  thought  was  led  captive  by  the  conceptions  of  the 
Roman  law,  as  all  subsequent  thought  that  has  known  it  has 
been,  and  his  habits  were  much  modified  by  those  of  his  new 
subjects ;  but  this  strong  element  of  individualism  was  not 
destroyed  by  the  contact.  It  lived  to  constitute  one  of  the  chief 
features  of  the  Feudal  System. 

The  Transitional  Feudal  System. — The  Feudal  System 
was  made  up  of  elaborate  gradations  of  personal  allegiance. 
The  only  State  possible  under  that  system  was  a  disintegrate 
state  embracing,  not  a  unified  people,  but  a  nation  atomized  into 
its  individual  elements.  A  king  there  might  be,  but  he  was  lord, 
not  of  his  people,  but  of  his  barons.  He  was  himself  a  baron  also, 
and  as  such  had  many  a  direct  subject  pledged  to  serve  him ;  but 
as  king  the  barons  were  his  only  direct  subjects ;  and  the  barons 
were  heedful  of  their  allegiance  to  him  only  when  he  could  make 
it  to  their  interest  to  be  so,  or  their  peril  not  to  be.  They  were 
the  kings  of  the  people,  who  owed  direct  allegiance  to  them 
alone,  and  to  the  king  only  through  them.  Kingdoms  were  only 
greater  baronies,  baronies  lesser  kingdoms.  One  small  part  of 
the  people  served  one  baron,  another  part  served  another  baron. 
As  a  whole  they  served  no  one  master.  They  were  not  a  whole : 
they  were  jarring,  disconnected  segments  of  a  nation.  Every 
man  had  his  own  lord,  and  antagonized  every  one  who  had  not 
the  same  lord  as  he  (pages  103-109). 

Else  of  the  Modern  State.  —  Such  a  system  was  fatal  to 
peace  and  good  government,  but  it  cleared  the  way  for  the  rise 
of  the  modern  State  by  utterly  destroying  the  old  conceptions. 
The  State  of  the  ancients  had  been  an  entity  in  itself,  —  an  entity 


NATURE   AND   FORMS   OF   GOVERNMENT.  39 

to  which  the  entity  of  the  individual  was  altogether  subordinate. 
The  Feudal  State  was  merely  an  aggregation  of  individuals, — 
a  loose  bundle  of  separated  series  of  men  knowing  few  common 
aims  or  actions.  It  not  only  had  no  actual  unity:  it  had  no 
thought  of  unity.  National  unity  came  at  last,  —  in  France,  for 
instance,  by  the  subjugation  of  the  barons  by  the  king  (page  115); 
in  England  by  the  joint  effort  of  people  and  barons  against  the 
throne,  —  but  when  it  came  it  was  the  ancient  unity  with  a  differ- 
ence. Men  were  no  longer  State  fractions ;  they  had  become 
State  integers.  The  State  seemed  less  like  a  natural,  and  more 
like  a  deliberately  organized  association.  Personal  allegiance  to 
kings  had  everywhere  taken  the  place  of  native  membership  of 
a  body  politic.  Men  were  now  subjects,  not  citizens. 

Renaissance  and  Reformation. — Presently  came  the 
thirteenth  century  with  its  wonders  of  personal  adventure  and 
individual  enterprise  in  discovery,  piracy,  and  trade.  -Follow- 
ing hard  upon  these,  the  Kenaissance  woke  men  to  a  philosophi- 
cal study  of  their  surroundings,  —  and  above  all  of  their  long- 
time unquestioned  systems  of  thought.  Then  arose  Luther  to 
reiterate  the  almost  forgotten  truths  of  the  individuality  of  men's 
consciences,  the  right  of  individual  judgment.  Ere  long  the  new 
thoughts  had  penetrated  to  the  masses  of  the  people.  Reformers 
had  begun  to  cast  aside  their  scholastic  weapons  and  come  down 
to  the  common  folk  about  them,  talking  their  own  vulgar  tongue 
and  craving  their  acquiescence  in  the  new  doctrines  of  deliver- 
ance from  mental  and  spiritual  bondage  to  Pope  or  Schoolman. 
National  literatures  were  born.  Thought  had  broken  away  from 
its .  exclusion  in  cloisters  and  universities  and  had  gone  out  to 
challenge  the  people  to  a  use  of  their  own  minds.  By  using  their 
minds,  the  people  gradually  put  away  the  childish  things  of  their 
days  of  ignorance,  and  began  to  claim  a  part  in  affairs.  Finally, 
systematized  popular  education  has  completed  the  story.  Nations 
are  growing  up  into  manhood.  Peoples  are  becoming  old  enough 
to  govern  themselves. 

The  Modern  Force  of  Majorities.  —  It  is  thus  no  acci- 
dent, but  the  outcome  of  great  permanent  causes,  that  there,  is  no 
more  to  be  found  among  the  civilized  races  of  Europe  any  sat- 
isfactory example  of  Aristotle's  Monarchies  and  Aristocracies. 


40  NATURE    AND    FORMS    OF   GOVERNMENT. 

The  force  of  modern  governments  is  not  now  often  the  force  of 
minorities.  It  is  getting  to  be  more  and  more  the  force  of  majori- 
ties. The  sanction  of  every  rule  not  founded  upon  sheer  military 
despotism  is  the  consent  of  a  thinking  people.  Military  despot- 
isms are  now  seen  to  be  necessarily  ephemeral.  Only  monarchs 
who  are  revered  as  seeking  to  serve  their  subjects  are  any  longer 
safe  upon  their  thrones.  Monarchies  exist  only  by  democratic 
consent. 

New  Character  of  Society.  —  And,  more  than  that,  the 
result  has  been  to  give  to  society  a  new  integration.  The  com- 
mon habit  is  now  operative  again,  not  in  acquiescence  and  sub- 
mission merely,  but  in  initiative  and  progress  as  well.  Society 
is  not  the  unity  it  once  was,  —  its  members  are  given  freer  play, 
fuller  opportunity  for  origination ;  but  its  unified  character  is 
again  prominent.  It  is  the  Whole  which  has  emerged  from 
the  disintegration  of  feudalism  and  the  specialization  of  abso- 
lute monarchy.  The  Whole,  too,  has  become  self-conscious,  and 
by  becoming  self-directive  has  set  out  upon  a  new  course  of 
development. 

* 

SELECTED  BIBLIOGRAPHY. 

(For  this  and  the  two  succeeding  chapters.) 

Amos,  Sheldon,  Science  of  Politics,  London,  1890. 

Aristotle,  Politics. 

Beaulieu,  P.  Leroy,  The  Modern  State,  London,  1891. 

Burgess,  John  W.,  Political  Science  and  Constitutional,  Boston,  1891. 

Garner,  J.  W.,  Introduction  to  Political  Science,  N.  Y. 

Graham,  William,  Socialism,  2d  ed.,  London,  1901. 

Jellinek,  Georg,  Das  Recht  des  Modernen  Staates,  2d  ed.,  Berlin,  1905. 

Lilly,  W.  S.,  First  Principles  in  Politics,  N.  Y.,  1899. 

Mill,  J.  S.,  On  Liberty,  N.  Y.,  1877. 

Plato,  Republic. 

Ral,  John,  Contemporary  Socialism,  2d  ed.,  1891. 

Ritchie,  Principles  of  State  Interference. 

Sidgwick,  Henry,  Elements  of  Politics,  London,  1891. 

Spencer,  Herbert,  Man  versus  the  State. 

Willoughby,  W.  W.,  The  Nature  of  the  State,  N.  Y.,  1896. 


III. 

THE   FUNCTIONS   OF  GOVERNMENT. 


What  are  the  Functions  of  Government  ?  —  The  question 
has  its  own  difficulties  and  complexities :  it  cannot  be  answered 
out  of  hand  and  by  the  list,  as  the  physiologist  might  answer  the 
question,  What  are  the  functions  of  the  heart  ?  In  its  nature 
government  is  one,  but  in  its  life  it  is  many  :  there  are  govern- 
ments and  governments.  When  asked,  therefore,  What  are  the 
functions  of  government  ?  we  must  ask  in  return,  Of  what  gov- 
ernment ?  Different  states  have  different  conceptions  of  their 
duty,  and  so  undertake  different  things.  They  have  had  their 
own  peculiar  origins,  their  own  characteristic  histories ;  circum- 
stance has  moulded  them;  necessity,  interest,  or  caprice  has 
variously  guided  them.  Some  have  lingered  near  those  primitive 
institutions  which  all  once  knew  and  upheld  together;  others 
have  quite  forgotten  that  man  ever  had  a  political  childhood  and 
are  rtow  old  in  complex  practices  of  national  self-government. 

The  Nature  of  the  Question.  —  It  is  important  to  notice 
at  the  outset  that  this  is  in  one  aspect  obviously  a  simple  question 
of  fact ;  and  yet  there  is  another  phase  of  it,  in  which  it  becomes 
as  evidently  a  question  of  opinion.  The  distinction  is  important 
because  over  and  over  again  the  question  of  fact  has  been  con- 
founded with  that  very  widely  different  question,  What  ought  the 
functions  of  government  to  be  f  The  two  questions  should  be  kept 
entirely  separate  in  treatment.  Under  no  circumstances  may  we 
instructively  or  safely  begin  with  the  question  of  opinion :  the 
answer  to  the  question  of  fact  is  the  indispensable  foundation  of 
all  sound  reasoning  concerning  government,  which  is  at  all  points 
based  upon  experience  rather  than  upon  theory.  The  facts  of 
government  mirror  the  principles  of  government  in  operation. 

41 


42  THE   FUNCTIONS    OF    GOVERNMENT. 

What  government  does  must'  arise  from  what  government  is : 
and  what  government  is  must  determine  what  government  ought 
to  do. 

Classification.  —  It  will  contribute  to  clearness  of  thought 
to  observe  the  functions  of  government  in  two  groups,  I.  The 
Constituent  Functions,  II.  TJie  Ministrant.  Under  the  Constitu- 
ent I  would  place  that  usual  category  of  governmental  function, 
the  protection  of  life,  liberty,  and  property,  together  with  all 
other  functions  that  are  necessary  to  the  civic  organization  of 
society,  —  functions  which  are  not  optional  with  governments, 
even  in  the  eyes  of  strictest  laissez  faire, —  which  are  indeed 
the  very  bonds  of  society.  Under  the  Ministrant  I  would  range 
those  other  functions  (such  as  education,  posts  and  telegraphs, 
and  the  care,  say,  of  forests)  which  are  undertaken,  not  by  way 
of  governing,  but  by  way  of  advancing  the  general  interests  of 
society,  —  functions  which  are  optional,  being  necessary  only 
according  to  standards  of  convenience  or  expediency,  and  not 
according  to  standards  of  existence ;  functions  which  assist  with- 
out constituting  social  organization. 

Of  course  this  classification  is  based  primarily  upon  objective 
and  practical  distinctions  and  cannot  claim  philosophic  complete- 
ness. There  may  be  room  for  question,  too,  as  to  whether  some 
of  the  functions  which  I  class  as  Ministrant  might  not  quite  as 
properly  have  been  considered  Constituent ;  but  I  must  here 
simply  act  upon  my  own  conclusions  without  rearguing  them, 
acknowledging  by  the  way  that  the  line  of  demarcation  is  not 
always  perfectly  clear. 

"  The  admitted  functions  of  government,"  said  Mr.  Mill,  "  em- 
brace a  much  wider  field  than  can  easily  be  included  within  the 
ring-fence  of  any  restrictive  definition,  and  it  is  hardly  possible 
to  find  any  ground  of  justification  common  to  them  all,  except  the 
comprehensive  one  of  general  expediency." 

I.   The  Constituent  Functions : 

(1)  The  keeping  of  order  and  providing  for  the  protection  of 
persons  and  property  from  violence  and  robbery. 


THE   FUNCTIONS   OF   GOVERNMENT.  43 

(2)  The  fixing  of  the  legal  relations  between  man  and  wife  and 

between  parents  and  children. 

(3)  The  regulation  of  the  holding,  transmission,  and  interchange 

of  property,  and  the  determination  of  its  liabilities  for 
debt  or  for  crime. 

(4)  The  determination  of  contract  rights  between  individuals. 

(5)  The  definition  and  punishment  of  crime. 

(6)  The  administration  of  justice  in  civil  causes. 

(7)  The  determination  of  the  political  duties,  privileges,  and 

relations  of  citizens. 

(8)  Dealings  of  the  state  with  foreign  powers  :  the  preservation 

of  the  state  from  external  danger  or  encroachment  and 
the  advancement  of  its  international  interests. 

These  will  all  be  recognized  as  functions  which  persist  under 
every  form  of  government. 

II.  The  Ministrant  Functions.  —  It  is  hardly  possible  to 
give  a  complete  list  of  those  functions  which  I  have  called  Minis- 
trant, so  various  are  they  under  different  systems  of  government. 
The  following  partial  list  will  suffice,  however,  for  the  purposes 
of  the  present  discussion  : 

(1)  The  regulation  of  trade  and  industry.     Under  this  head  I 

would  include  the  coinage  of  money  and  the  establish- 
ment of  standard  weights  and  measures,  laws  against 
forestalling  and  engrossing,  the  licensing  of  trades,  etc., 
as  well  as  the  great  matter  of  tariffs,  navigation  laws, 
and  the  like. 

(2)  The  regulation  of  labor. 

(3)  The  maintenance  of  thoroughfares,  —  including  state  man- 

agement of  railways  and  that  great  group  of  undertak- 
ings which  we  embrace  within  the  comprehensive  term 
'  Internal  Improvements.' 

(4)  The  maintenance  of  postal  and  telegraph  systems,  which  is 

very  similar  in  principle  to  (3). 

(5)  The  manufacture  and  distribution  of  gas,  the  maintenance 

of  water-works,  etc. 

(6)  Sanitation,  including  the  regulation  of  trades  for  sanitary 

purposes. 


44  THE    FUNCTIONS    OF    GOVERNMENT. 

(7)  Education. 

(8)  Care  of  the  poor  and  incapable. 

(9)  Care  and  cultivation  of  forests  and  like  matters,  such  as  the 

stocking  of  rivers  with  fish. 

(10)  Sumptuary  laws,  such  as  '  prohibition '  laws,  for  example. 
These  are  all  functions  which,  in  one  shape  or  another, 

all  governments  alike  have  undertaken.  Changed  conceptions  of 
the  nature  and  duty  of  the  state  have  arisen,  issuing  from  changed 
historical  conditions  and  deeply  altered  historical  circumstances  ; 
and  part  of  the  change  which  has  thus  affected  the  idea  of  the 
state  has  been  a  change  in  the  method  and  extent  of  the  exer- 
cise of  governmental  functions  ;  but  changed  conceptions  have 
left  the  functions  of  government  in  kind  the  same.  Diversities 
of  conception  are  very  much  more  marked  than  diversities  of 
practice. 

History  of  Governmental  Function :  Province  of  the  An- 
cient State.  —  Notable  contrasts  both  of  theory  and  of  practice  sepa- 
rate governments  of  the  ancient  omnipotent  type  from  governments 
of  the  modern  constitutional  type.  The  ancient  State,  standing 
very  near,  as  it  did,  in  its  thought,  to  that  time,  still  more  remote, 
when  the  State  was  the  Kin,  knew  nothing  of  individual  rights  as 
contrasted  with  the  rights  of  the  state.  "  The  nations  of  Italy," 
says  Mommsen,  "  did  not  merge  into  that  of  Home  more  completely 
than  the  single  Eoman  burgess  merged  in  the  Roman  community." 
And  Greece  was  not  a  whit  behind  Rome  in  the  absoluteness 
with  which  she  held  the  subordination  of  the  individual  to  the 
state. 

This  thought  is  strikingly  visible  in  the  writings  of  Plato  and 
Aristotle,  not  only  in  what  they  say,  but  also,  and  even  more,  in 
what  they  do  not  say.  The  ideal  Republic  of  which  Plato  dreams 
is  to  prescribe  the  whole  life  of  its  citizens ;  but  there  is  no  sug- 
gestion that  it  is  to  be  set  up  under  cover  of  any  new  conception 
as  to  what  the  state  may  legitimately  do,  —  it  is  only  to  make 
novel  experiments  in  legislation  under  the  old  conception.  And 
Aristotle's  objection  to  the  Utopian  projects  of  his  master  is  not 
that  they  would  be  socialistic  (as  we  should  say),  but  merely  that 
they  would  be  unwise.  He  does  not  fear  that  in  such  a  republic 
the  public  power  would  prove  to  have  been  exalted  too  high  ;  but, 


THE    FUNCTIONS    OF    GOVERNMENT.  45 

speaking  to  the  policy  of  the  thing,  he  foresees  that  the  citizens 
would  be  poor  and  unhappy.  The  state  may  do  what  it  will,  but 
let  it  be  wise  in  what  it  does.  There  is  no  one  among  the  Greeks 
to  deny  that  it  is  the  duty  of  the  state  to  make  its  citizens  happy 
and  prosperous;  nay,  to  legislate  them  happy,  if  legislation  may 
create  fair  skies  and  a  kind  fortune ;  the  only  serious  quarrel 
concerns  the  question,  What  laws  are  to  be  tried  to  this  end  ? 

Roman  Conception  of  Private  Rights.  —  Roman  principles, 
though  equally  extreme,  were  in  some  respects  differently  cast. 
That  superior  capacity  for  the  development  of  law,  which  made 
the  Romans  singular  among  the  nations  of  antiquity,  showed 
itself  in  respect  of  the  functions  of  government  in  a  more  distinct 
division  between  public  and  private  rights  than  obtained  in  the 
polity  of  the  Greek  cities.  An  examination  of  the  conception  of 
the  state  held  in  Rome  reveals  the  singular  framework  of  her 
society.  The  Roman  family  did  not  suffer  that  complete  absorp- 
tion into  the  City  which  so  early  overtook  the  Greek  family. 
Private  rights  were  not  individual  rights,  but  family  rights :  and 
family  rights  did  not  so  much  curtail  as  supplement  the  powers 
of  the  community.  The  family  was  an  indestructible  organ  of 
the  state.  The  father  of  a  family,  or  the  head  of  a  gens,  was  in  a 
sense  a  member  of  the  official  hierarchy  of  the  City,  —  as  the  king, 
or  his  counterpart  the  consul,  was  a  greater  father.  There  was  no 
distinction  of  principle  between  the  power  of  king  or  consul  and 
the  power  of  a  father ;  it  was  a  mere  difference  of  sphere,  a  divi- 
sion of  functions. 

A  son  was,  for  instance,  in  some  things  exempt  from  the  author- 
ity of  the  City  only  because  he  was  in  those  things  still  subject,  because 
his  father  still  lived,  to  the  dominion  of  that  original  state,  the  family. 
There  was  not  in  Rome  that  separation  of  the  son  from  the  family  at 
majority  which  characterizes  the  Greek  polity,  as  it  now  characterizes 
our  own.  The  father  continued  to  be  a  ruler,  an  hereditary  state  officer, 
within  the  original  sphere  of  the  family  life,  the  large  sphere  of  individual 
privilege  and  property. 

This  essential  unity  of  state  and  family  furnishes  us 
with  the  theoretic  measure  of  state  functions  in  Rome.  The 
Roman  burgess  was  subordinated,  not  to  the  public  authority 
exactly,  but  rather  to  the  public  order,  to  the  conservative  in- 


46  THE  FUNCTIONS  OF  GOVERNMENT. 

fcegrity  of  the  community.  He  was  subject  to  a  law  which 
embodied  the  steady,  unbroken  habit  of  the  State-family.  He 
was  not  dominated,  but  merged. 

Powers  of  the  Roman  Senate.  —  The  range  of  state  power 
in  ancient  times,  as  a  range  broken  only  by  limits  of  habit  and  con- 
venience, is  well  illustrated  in  the  elastic  functions  of  the  Roman  Senate 
during  the  period  of  the  Republic.  With  an  unbroken  life  which  kept 
it  conscious  of  every  tradition  and  familiar  with  every  precedent ;  with 
established  standards  of  tested  experience  and  cautious  expediency,  it  was 
able  to  direct  the  movements  of  the  compact  society  at  whose  summit  it 
sat,  as  the  brain  and  consciousness  direct  the  movements  of  the  human 
body  ;  and  it  is  evident  from  the  freedom  of  its  discussions  and  the 
frequency  of  its  action  upon  interests  of  every  kind,  whether  of  public 
or  of  private  import,  that  the  Roman  state,  as  typified  in  its  Senate,  was 
in  its  several  branches  of  family,  tribe,  and  City,  a  single  undivided 
whole,  and  that  its  prerogatives  were  limited  by  nothing  save  religious 
observance  and  fixed  habit.  Of  that  individual  liberty  which  we  cherish 
it  knew  nothing. 

Government  the  Embodiment  of  Society.  —  As  little  was 
there  in  Greek  politics  any  seed  of  the  thought  which  would 
limit  the  sphere  of  governmental  action  by  principles  of  inalien- 
able individual  rights.  Both  in  Greek  and  in  Eoman  conception 
government  was  as  old  as  society,  —  was  indeed  nothing  less 
than  the  express  image  and  embodiment  of  society.  In  govern- 
ment society  lived  and  moved  and  had  its  being.  Society  and 
government  were  one,  in  some  such  sense  as  the  spirit  and 
body  of  man  are  one :  it  was  through  government,  as  through 
mouth  and  eyes  and  limbs,  that  society  realized  and  gave  effect 
to  its  life.  Society's  prejudices,  habits,  superstitions,  did 
indeed  command  the  actions  of  government;  but  only  because 
society  and  government  were  one  and  the  same,  not  because  they 
were  distinct  and  the  one  subordinate  to  the  other.  In  plain 
terms,  the  functions  of  government  had  no  limits  of  principle, 
but  only  certain  limits  of  wont  and  convenience,  and  the  object 
of  administration  was  nothing  less  than  to  help  society  on  to  all 
its  ends  :  to  speed  and  facilitate  all  social  undertakings.  So  far  as 
full  citizens  of  the  state  were  concerned,  Greek  and  Roman  alike 
was  what  we  should  call  a  socialist ;  though  he  was  too  much  in  the 
world  of  affairs  and  had  too  keen  an  appreciation  of  experience, 


THE  FUNCTIONS  OF  GOVERNMENT.          47 

* 

too  keen  a  sense  of  the  sane  and  possible,  to  attempt  the  Utopias 
of  which  the  modern  socialist  dreams,  and  with  which  the  ancient 
citizen's  own  writers  sometimes  amused  him.  He  bounded  his 
politics  by  common  sense,  and  so  dispensed  with  f  the  rights  of 
man.' 

Feudalism:  Functions  of  Government  Functions  of  Pro- 
prietorship. —  Individual  rights,  after  having  been  first  heralded 
in  the  religious  world  by  *he  great  voice  of  Christianity,  broke 
into  the  ancient  political  world  in  the  person  of  the  Teuton.  But 
the  new  politics  which  the  invader  brought  with  him  was  not 
destined  to  establish  at  once  democratic  equality:  that  was  a 
work  reserved  for  the  transformations  of  the  modern  world 
During  the  Middle  Ages,  government,  as  we  conceive  it,  may 
be  said  to  have  suffered  eclipse.  In  the  Feudal  System  the 
constituent  elements  of  government  fell  away  from  each  other. 
Society  was  drawn  back  to  something  like  its  original  family 
groups.  Conceptions  of  government  narrowed  themselves  to 
small  territorial  connections.  Men  became  sovereigns  in  their 
own  right  by  virtue  of  owning  land  in  their  own  right.  There 
was  no  longer  any  conception  of  nations  or  societies  as  wholes. 
Union  there  was  none,  but  only  interdependence.  Allegiance 
bowed,  not  to  law  or  to  fatherhood,  but  to  ownership.  The 
functions  of  government  under  such  a  system  were  simply  the 
functions  of  proprietorship,  of  command  and  obedience :  "  I  say 
unto  one,  Go,  and  he  goeth;  and  to  another,  Come,  and  he 
cometh;  and  to  my  servant,  Do  this,  and  he  doeth  it."  The 
public  function  of  the  baron  was  to  keep  peace  among  his  liege- 
men, to  see  that  their  properties  were  enjoyed  according  to  the 
custom  of  the  manor  (if  the  manor  had  been  suffered  to  acquire 
custom  on  any  point),  and  to  exact  fines  of  them  for  all  privi- 
leges, whether  of  marrying,  of  coming  of  age,  or  of  making  a 
will.  The  baronial  conscience,  bred  in  cruel,  hardening  times, 
was  the  only  standard  of  justice;  the  baronial  power  the  only 
conclusive  test  of  prerogative. 

This  was  between  baron  and  vassal.  Between  baron 
and  baron  the  only  bond  was  a  nominal  common  allegiance  to  a 
distant  king,  who  was  himself  only  a  greater  baron.  For  the 
rest  there  was  no  government,  but  only  diplomacy  and  warfare. 


48  THE  FUNCTIOKS   OF   GOVERNMENT. 

Government  lived  where  it  could  and  as  it  could,  and  was  for 
the  most  part  divided  out  piecemeal  to  a  thousand  petty  holders. 
Armed  feuds  were  the  usual  processes  of  -Justice. 

The  Feudal  Monarchy.  —  The  monarchy  which  grew 
out  of  the  ruins  of  this  disintegrate  system  concentrated  au- 
thority without  much  changing  its  character.  The  old  idea, 
born  of  family  origins,  that  government  was  but  the  active  au- 
thority of  society,  the  magistrate  but  society's  organ,  bound  by 
society's  immemorial  laws,  had  passed  utterly  away,  and  govern- 
ment  had  become  the  personal  possession  of  one  man.  The 
ruler  did  not  any  longer  belong  to  the  state ;  the  state  belonged 
to  him :  he  was  himself  the  state,  as  the  rich  man  may  be  said  to 
be  his  possessions.  The  Greek  or  Roman  official  was  wielded  by 
the  community.  Not  so  the  king  who  had  swept  together  into 
his  own  lap  the  powers  once  broadcast  in  the  feudal  system :  he 
wielded  the  community.  Government  breathed  with  his  breath, 
and  it  was  its  function  to  serve  him.  The  state  had  become,  by 
the  processes  of  the  feudal  development,  his  private  estate. 

Modern  De-socialization  of  the  State.  —  The  reaction  from 
such  conceptions,  slow  and  for  the  most  part  orderly  in  England, 
sudden  and  violent,  because  long  forcibly  delayed,  on  the  Conti- 
nent, was  natural,  and  indeed  inevitable.  When  it  came  it  was 
radical ;  but  it  did  not  swing  the  political  world  back  to  its  old- 
time  ideas ;  it  turned  it  aside  rather  to  new.  The  ancient  man 
had  had  no  thought  but  to  live  loyally  the  life  of  society;  but  it 
became  the  object  of  the  revolutionist  and  the  democrat  of  the 
new  order  of  things  to  live  his  own  life.  The  antique  citizen's 
virtues  were  not  individual  in  their  point  of  view,  but  social; 
whereas  our  virtues  are  almost  entirely  individual  in  their  motive, 
social  only  in  some  of  their  results. 

In  brief,  the  modern  State  has  been  largely  de-socialized. 
The  modern  idea  is  this:  the  state  no  longer  absorbs  the  indi- 
vidual ;  it  only  serves  him.  The  state,  as  it  appears  in  its  organ, 
the  government,  is  the  representative  of  the  individual,  and  not 
his  representative  even  except  within  the  definite  commission  of 
constitutions  ;  while  for  the  rest  each  man  makes  his  own  social 
relations.  '  The  individual  for  the  State '  has  been  reversed  and 
made  to  read,  'The  State  for  the  individual.' 


THE    FUNCTIONS   OF  GOVERNMENT.  49 

More  Changes  of  Conception  than  of  Practice.  —  Such  are 
the  divergencies  of  conception  separating  modern  from  ancient  poli- 
tics, divergencies  at  once  deep  and  far-reaching.  How  far  have 
such  changes  of  thought  been  accompanied  by  changes  of  func- 
tion ?  By  no  means  so  far  as  might  be  expected.  Apparently  the 
new  ideas  which  have  been  given  prevalence  in  politics  from  time 
to  time  have  not  been  able  to  translate  themselves  into  altered 
functions,  but  only  into  somewhat  curtailed  functions,  breeding 
rather  a  difference  of  degree  than  a  difference  of  kind.  Even 
under  the  most  liberal  of  our  modern  constitutions  we  still  meet 
government  in  almost  every  field  of  social  endeavor.  Our  modern 
life  is  so  infinitely  wide  and  complex,  it  is  true,  that  we  may  go 
great  distances  in  any  field  of  enterprise  without  receiving  either 
direct  aid  or  direct  check  from  government ;  but  that  is  only  be- 
cause every  field  of  enterprise  is  vastly  big  nowadays,  not  because 
government  is  not  somewhere  in  it :  and  we  know  that  the  tend- 
ency is  for  governments  to  make  themselves  everywhere  more  and 
more  conspicuously  present.  We  are  conscious  that  we  are  by 
no  means  in  the  same  case  with  the  Greek  or  Koman :  the  state  is 
ours,  not  we  the  state's.  But  we  know  at  the  same  time  that  the 
tasks  of  the  state  have  not  been  much  diminished.  Perhaps  we 
may  say  that  the  matter  stands  thus :  what  is  changed  is  not  the 
activities  of  government  but  only  the  morals,  the  conscience  of 
government.  Government  may  still  be  doing  substantially  the 
same  things  as  of  old  ;  but  an  altered  conception  of  its  responsi- 
bility deeply  modifies  the  ivay  in  which  it  does  them.  Social  conven- 
ience and  advancement  are  still  its  ultimate  standard  of  conduct, 
just  as  if  it  were  still  itself  the  omnipotent  impersonation  of 
society,  the  master  of  the  individual;  but  it  has  adopted  new 
ideas  as  to  what  constitutes  social  convenience  and  advancement. 
Its  aim  is  to  aid  the  individual  to  the  fullest  and  best  possible 
realization  of  his  individuality,  instead  of  merely  to  the  full 
realization  of  his  sociality.  Its  plan  is  to  create  the  best  and  fairest 
opportunities  for  the  individual ;  and  it  has  discovered  that  the  way 
to  do  this  is  by  no  means  itself  to  undertake  the  administration 
of  the  individual  by  old-time  futile  methods  of  guardianship. 

Functions  of  Government  much  the  Same  now  as  always. 
—  This  is  indeed  a  great  and  profound  change  j  but  it  is  none  the 


50  THE   FUNCTIONS   OF   GOVERNMENT. 

(ess  important  to  emphasize  the  fact  that  the  functions  of  govern- 
ment are  still,  when  catalogued,  found  to  be  much  the  same  both 
in  number  and  magnitude  that  they  always  were.  Government 
does  not  stop  with  the  protection  of  life,  liberty,  and  property,  as 
some  have  supposed;  it  goes  on  to  serve  every  convenience  of 
society.  Its  sphere  is  limited  only  by  its  own  wisdom,  alike  where 
republican  and  where  absolutist  principles  prevail. 

The  State's  Relation  to  Property.  —  A  very  brief  examina- 
tion of  the  facts  suffices  to  confirm  this  view.  Take,  for  example, 
the  state's  relation  to  property,  its  performance  of  one  of  the 
chief  of  those  functions  which  I  have  called  Constituent.  It  is 
in  connection  with  this  function  that  one  of  the  most  decided  con- 
trasts exists  between  ancient  and  modern  political  practice ;  and 
yet  we  shall  not  find  ourselves  embarrassed  to  recognize  as  natural 
the  practice  of  ancient  states  touching  the  right  of  private  prop- 
erty. Their  theory  was  extreme,  but,  outside  of  Sparta,  their 
practice  was  moderate. 

In  Sparta.  —  Consistent,  logical  Sparta  may  serve  as  the 
point  of  departure  for  our  observation.  She  is  the  standing  clas- 
sical type  of  exaggerated  state  functions  and  furnishes  the  most 
extreme  example  of  the  antique  conception  of  the  relations  of  the 
state  to  property.  In  the  early  periods  of  her  history  at  least, 
besides  being  censor,  pedagogue,  drill  sergeant,  and  housekeeper  to 
her  citizens,  she  was  also  universal  landlord.  There  was  a  distinct 
reminiscence  in  her  practice  of  the  time  when  the  state  was  the 
family,  and  as  such  the  sole  owner, of  property.  She  was  regarded 
as  the  original  proprietor  of  all  the  land  in  Laconia,  and  individ- 
ual tenure  was  looked  upon  as  rather  of  the  nature  of  a  usufruct 
held  of  the  state  and  at  the  state's  pleasure  than  as  resting  upon 
any  complete  or  indefeasible  private  title. 

Peculiar  Situation  of  the  Spartans.  —  There  were  in  Sparta 
special  reasons  for  the  persistence  of  such  a  system.  The  Spartans  had 
come  into  Laconia  as  conquerors,  and  the  land  had  first  of  all  been  tribal 
booty.  It  had  been  booty  of  which  the  Spartan  host  as  a  whole,  as  a 
state,  had  had  the  dividing,  and  it  had  been  the  purpose  of  the  early 
arrangement  to  make  the  division  of  the  land  among  the  Spartan  families 
as  equal  as  possible.  Nor  did  the  state  resign  the  right  of  disposition  in 
making  this  first  distribution.  It  remained  its  primary  care  to  keep  its 
citizens,  the  favored  Spartiatce,  upon  an  equal  footing  of  fortune,  to  the 


THE   FUNCTIONS    OF    GOVERNMENT.  51 

end  that  they  might  rgnain  rich  in  leisure,  and  so  be  the  better  able  to 
live  entirely  for  the  service  of  the  state,  which  was  honorable,  to  the 
avoidance  of  that  pursuit  of  wealth  which  was  dishonorable.  The  state, 
accordingly,  undertook  to  administer  the  wealth  of  the  country  for  the 
benefit  of  its  citizens.  When  grave  inequalities  manifested  themselves  in 
the  distribution  of  estates  it  did  not  hesitate  to  resume  its  proprietary 
rights  and  effect  a  reapportionment ;  no  one  dreaming,  the  while,  of  call- 
ing its  action  confiscation.  It  took  various  means  for  accomplishing  its 
ends.  It  compelled  rich  heiresses  to  marry  men  without  patrimony  ;  and 
it  grafted  the  poor  citizen  upon  a  good  estate  by  means  of  prescribed 
adoption.  No  landed  estate  could  be  alienated  either  by  sale  or  testament 
from  the  family  to  which  the  state  had  assigned  it  unless  express  legislative 
leave  were  given.  In  brief,  in  respect  of  his  property  the  citizen  was  both 
ward  and  tenant  of  the  state. 

Decay  of  the  System.  —  As  the  Spartan  state  decayed  this 
whole  system  was  sapped.  Estates  became  grossly  unequal,  as 
did  also  political  privileges  even  among  the  favored  Spartiatce. 
But  these  changes  were  due  to  the  decadence  of  Spartan  power 
and  to  the  degeneration  of  her  political  fibre  in  days  of  waning 
fortune,  not  to  any  conscious  or  deliberate  surrender  by  the  state 
of  its  prerogatives  as  owner,  guardian,  and  trustee.  She  had 
grown  old  and  lax  simply ;  she  had  not  changed  her  mind. 

In  Athens.  —  When  we  turn  to  Athens  we  experience  a 
marked  change  in  the  political  atmosphere,  though  the  Athenians 
hold  much  the  same  abstract  conception  of  the  state.  Here  men 
breathe  more  freely  and  enjoy  the  fruits  of  their  labor,  where 
labor  is  without  reproach,  with  less  restraint.  Even  in  Athens 
there  remain  distinct  traces,  nevertheless,  of  the  family  duties  of 
the  state.  She  too,  like  Sparta,  felt  bound  to  dispose  properly  of 
eligible  heiresses.  She  did  not  hesitate  to  punish  with  heavy  for- 
feiture of  right  (atimia)  those  who  squandered  their  property  in 
dissolute  living.  There  was  as  little  limit  in  Athens  as  in 
Sparta  to  the  theoretical  prerogatives  of  the  public  authority. 
The  freedom  of  the  citizen  was  a  freedom  of  indulgence  rather 
than  of  right:  he  was  free  because  the  state  refrained, — as  a 
privileged  child,  not  as  a  sovereign  under  Rousseau's  Law  of 
Nature. 

In  Rome.  — When  we  shift  our  view  to  republican  Eome 
we  do  not  find  a  simple  city  omnipotence  like  that  of  Greece,  in 


52  THE   FUNCTIONS    OF    GOVERNMENT. 

which  all  private  rights  are  sunk.  The  .primal  constituents  of 
the  city  yet  abide  in  shapes  something  like  their  original.  Roman 
society  consists  of  a  series  of  interdependent  links :  the  family 
the  gens,  the  city.  The  aggregate,  not  the  fusion,  of  these  makes 
up  what  we  should  call  the  state.  But  the  state,  so  made  up,  was 
omnipotent,  through  one  or  other  of  its  organs,  over  the  indi- 
vidual. Property  was  not  private  in  the  sense  of  being  individ- 
ual ;  it  vested  in  the  family,  which  was,  in  this  as  in  other 
respects,  an  organ  of  the  gbate.  Property  was  not  conceived  of  as 
state  property,  because  it  had  remained  the  undivided  property  of 
the  family.  The  father,  as  a  ruler  in  the  immemorial  hierarchy 
of  the  government,  was  all-powerful  trustee  of  the  family  estates ; 
individual  ownership  there  was  none. 

Tinder  Modern  Governments.  —  We  with  some  justice 
felicitate  ourselves  that  to  this  omnipotence  of  the  ancient  state 
in  its  relations  to  property  the  practice  of  our  own  governments 
offers  the  most  pronounced  contrasts.  But  the  point  of  greatest 
interest  for  us  in  the  present  connection  is  this,  that  these  con- 
trasts are  contrasts  of  policy,  not  of  povier.  To  what  lengths  it 
will  go  in  regulating  property  rights  is  for  each  government  a 
question  of  principle,  which  it  must  put  to  its  own  conscience, 
and  which,  if  it  be  wise,  it  will  debate  in  the  light  of  political 
history :  but  every  government  must  regulate  property  in  one 
way  or  another  and  may  regulate  it  as  much  as  it  pleases.  If  the 
ancient  state  was  regarded  as  the  ultimate  owner,  the  modern 
state  is  regarded  as  the  ultimate  heir  of  all  estates.  Failing 
other  claimants,  property  escheats  to  the  state.  If  the  modern 
state  does  not  assume,  like  the  ancient,  to  administer  their  prop- 
erty upon  occasion  for  competent  adults,  it  does  administer  their 
property  upon  occasion  for  lunatics  and  minors.  The  ancient 
state  controlled  slaves  and  slavery.  The  modern  state  has  been 
quite  as  absolute :  it  has  abolished  slaves  and  slavery.  The 
modern  state,  no  less  than  the  ancient,  sets  rules  and  limitations 
to  inheritance  and  bequest.  Most  of  the  more  extreme  and  hurt- 
ful interferences  with  rights  of  private  ownership  government  has 
abandoned,  one  may  suspect,  rather  because  of  difficulties  of  ad- 
ministration than  because  of  difficulties  of  conscience.  It  is  of  the 
nature  of  the  state  to  regulate  property  rights ;  it  is  of  the  policy 


THE   FUNCTIONS   OF   GOVERNMENT.  53 

of  the  state  to  regulate  them  more  or  less.  Administrators  must 
regard  this  as  one  of  the  Constituent  functions  of  political  society. 

The  State  and  Political  Rights.  —  Similar  conclusions 
may  be  drawn  from  a  consideration  of  the  contrasts  which  exist 
in  the  field  of  that  other  Constituent  function  which  concerns  the 
determination  of  political  rights, — the  contrasts  between  the 
status  of  the  citizen  in  the  ancient  state  and  the  status  of  the  citi- 
zen in  the  modern  state.  Here  also  the  contrast,  as  between  state 
and  state,  is  not  one  of  power,  but  one  of  principle  and  habit 
rather.  Modern  states  have  often  limited  as  narrowly  as  did  the 
ancient  the  enjoyment  of  those  political  privileges  which  we 
group  under  the  word  Franchise.  They,  too,  as  well  as  the 
ancient  states,  have  admitted  slavery  into  their  systems;  they 
too  have  commanded  their  subjects  without  moderation  and 
fleeced  them  without  compunction.  But  for  all  they  have  been 
so  omnipotent,  and  when  they  chose  so  tyrannical,  they  have 
seldom  insisted  upon  so  complete  and  unreserved  a  service  of  the 
state  by  the  citizen  as  was  habitual  to  the  political  practice  of 
both  the  Greek  and  the  Roman  worlds.  The  Greek  and  the 
Roman  belonged  each  to  his  state  in  a  quite  absolute  sense.  He 
was  his  own  in  nothing  as  against  the  claims  of  his  city  upon 
him :  he  freely  acknowledged  all  his  privileges  to  be  but  conces- 
sions from  his  mother,  the  commonwealth.  Those  privileges 
accrued  to  him  through  law,  as  do  ours;  but  law  was  to  him 
simply  the  will  of  the  organized  community ;  never,  as  we  know 
it  in  our  constitutions,  a  restraint  upon  the  will  of  the  organized 
community.  He  knew  no  principles  of  liberty  save  only  those 
which  custom  had  built  up :  which  inhered,  not  in  the  nature  of 
things,  not  in  abstract  individuality,  but  in  the  history  of  affairs, 
in  concrete  practice.  His  principles  were  all  precedents.  Never- 
theless, however  radically  different  its  doctrines,  the  ancient  state 
was  not  a  whit  more  completely  master  touching  laws  of  citizen- 
ship than  the  state  of  to-day  is. 

As  Regards  the  State's  Ministrant  Functions.  —  Of  the 
Ministrant,  no  less  than  of  the  Constituent  functions,  the  same 
statement  may  be  made,  that  practically  the  state  has  been 
relieved  of  very  little  duty  by  alterations  of  political  theory.  It 
is  natural  enough  that  in  the  field  of  the  Constituent  functions 


54  THE   FUNCTIONS   OF   GOVERNMENT. 

the  state  should  serve  society  now  as  always ;  in  this  field  of  the 
Ministrant  functions  one  would  expect  the  state  to  be  less  active 
now  than  formerly.  But  there  is  in  fact  no  such  difference  :  gov- 
ernment does  now  whatever  experience  permits  or  the  times  demand  ; 
and  though  it  does  not  do  exactly  the  same  things  it  still  does 
substantially  the  same  kind  of  things  that  the  ancient  state  did. 
It  will  conduce  to  clearness  if  I  set  forth  my  illustrations  of  this 
in  the  order  of  the  list  of  Ministrant  functions  which  I  have  given 
(page  43). 

(1)  The  State  in  Relation  to  Trade.  —  All  nations  have 
habitually  regulated  trade  and  commerce.     In  the  most  remote 
periods  of  which  history  has  retained  any  recollection  the  regu- 
lation of  trade  and  commerce  was  necessary  to  the  existence  of 
government.     The  only  way  in  which  communities  which  were 
then  seeking  to  build  up  a  dominant  power  could  preserve  an 
independent  existence  and  work  out  an  individual  development 
was   to   draw   apart  to  an  absolutely  separate   life.     Commerce 
meant   contact;  contact  meant  contamination:  the  only  way  in 
which  to  develop  character  and  achieve  cohesion  was  to  avoid 
intercourse.     In  the   classical   states  this  stage   is   passed  and 
trade  and  commerce  are  regulated  for  much  the  same  reasons 
fchat  induce  modern  states  to  regulate  them,  in  order,  that  is,  to 
secure  commercial  advantage  as  against  competitors  or  in  order 
to  serve  the  fiscal  needs  of  the  state.     Athens  and  Sparta  and 
Rome,  too,  regulated  the  corn  trade  for  the  purpose  of  securing 
for   their   citizens   full  store  of  food.     In  the  Middle  Ages  the 
feuds  and  highway  brigandage  of  petty  lords  loaded  commerce 
with  fetters  of  the  most  harassing  sort,  except  where  the  free 
cities  could  by  militant  combination  keep  open  to  it  an  unhin- 
dered passage  to  and  fro  between  the  great  marts  of  North  and 
South.     As  the  mediaeval  states  emerge  into   modern  times  we 
find  trade  and  commerce  handled  by  statesmen  as  freely  as  ever, 
but  according  to  the  reasoned  policy  of  the  mercantilist  thinkers ; 
and  in   our   own   days  according  to  still   other   conceptions   of 
national  advantage. 

(2)  The  State  in  Relation  to  Labor.  —  Labor,  too,  has 
always  been  regulated  by  the  state.     By  Greek  and  Roman  the 
labor   of    the   handicrafts   and   of    agriculture,  all   manual   toil 


THE   FUNCTIONS   OF   GOVERNMENT.  55 

indeed,  was  for  the  most  part  given  to  slaves  to  do ;  and  of  course 
law  regulated  the  slave.  In  the  Middle  Ages  the  labor  which 
was  not  agricultural  and  held  in  bondage  to  feudal  masters  was 
in  the  cities,  where  it  was  rigidly  ordered  by  the  complex  rules 
of  the  guild  system,  as  were  trade  also  and  almost  all  other  like 
forms  of  making  a  livelihood.  Where,  as  in  England,  labor  in  part 
escaped  from  the  hard  service  of  the  feudal  tenure  the  state  stepped 
in  with  its  persistent  "statutes  of  laborers"  and  sought  to  tie 
the  workman  to  one  habitation  and  to  one  rate  of  wages.  '  The 
rustic  must  stay  where  he  is  and  must  receive  only  so  much  pay/ 
was  its  command.  Apparently,  however,  all  past  regulation  of 
labor  was  but  elementary  as  compared  with  the  labor  legislation 
being  tried  by  the  governments  of  our  own  day.  The  birth  and 
development  of  the  modern  industrial  system  has  changed  every 
aspect  of  the  matter ;  and  this  fact  reveals  the  true  character  of 
the  part  which  the  state  plays  in  the  case.  The  rule  would 
seem  to  be  that  in  proportion  as  the  world's  industries  grow 
must  the  state  advance  in  its  efforts  to  assist  the  industrious  to 
advantageous  relations  with  each  other.  The  tendency  to  regu- 
late labor  rigorously  and  minutely  is  as  strong  in  England,  where 
the  state  is  considered  the  agent  of  the  citizen,  as  it  was  in 
Athens,  where  the  citizen  was  deemed  the  child  and  tool  of  the 
state,  and  where  the  workman  was  a  slave. 

(3)  Regulation   of    Corporations.  —  The   regulation    of 
corporations  is  but  one  side  of  the  modern  regulation  of  the  in- 
dustrial system,  and  is  a  function  added  to  the  antique  list  of 
governmental  tasks. 

(4)  The  State  and  Public  Works.  —  The  maintenance  of 
thoroughfares  may  be  said  to  have  begun  with  permanent  empire, 
that  is  to  say,  for  Europe,  with  the  Komans.     For  the  Romans, 
indeed,  it  was  first  a  matter  of  moving  armies,  only  secondarily  a 
means  of   serving   commerce;  whereas  with  us  the  highway  is 
above  all  things  else  an  artery  of  trade,  and  armies  use  it  only 
when  commerce  stands  still  at  the  sound  of  drum  and  trumpet. 
The  building  of  roads  may  therefore  be  said  to  have  begun  by 
being  a  Constituent  function  and  to  have  ended  by  becoming  a 
Ministrant  function  of  government.     But  the  same  is  not  true  of 
other  public  works,  of  the  Roman  aqueducts  and  theatres   and 


56  THE   FUNCTIONS   OF   GOVERNMENT. 

baths,  and  of  modern  internal  improvements.  They,  as  much  as 
the  Roman  tax  on  old  bachelors,  are  parts,  not  of  a  scheme  of 
governing,  but  of  plans  for  the  advancement  of  other  social  aims, 
—  for  the  administration  of  society.  Because  in  her  conception 
the  community  as  a  whole  was  the  only  individual,  Rome  thrust 
out  as  of  course  her  magnificent  roads  to  every  quarter  of  her 
vast  territory,  considered  no  distances  too  great  to  be  traversed 
by  her  towering  aqueducts,  deemed  it  her  duty  to  clear  river 
courses  and  facilitate  by  every  means  both  her  commerce  and  her 
arms.  And  the  modern  state,  though  holding  a  deeply  modified 
conception  of  the  relations  of  government  to  society,  still  follows 
a  like  practice.  If  in  most  instances  our  great  iron  highways  are 
left  to  private  management,  it  is  oftener  for  reasons  of  con- 
venience than  for  reasons  of  conscience. l 

(5)  Administration  of  the  Conveniences  of    Society.— 
Similar  considerations  apply  in  the  case  of  that  modern  instru- 
mentality, the  public  letter-post,  in  the  case  of   the  still  more 
modern  manufacture  of  gas,  and  in  the  case  of  the  most  modern 
telegraph  and  telephone.     The  modern  no  less  than  the  ancient 
government  unhesitatingly  takes  a  hand  in  administering  the  con- 
veniences of  society. 

(6)  Sanitation.  —  Modern  governments,  like  the  govern- 
ment of  Rome,  maintain  sanitation  by  means  of  police  inspection 
of  baths,  taverns,  and  houses  of  ill  fame,  as  well  as  by  drainage ; 
and  to  these  they  add  hospital  relief,  water  supply,  quarantine, 
and  a  score  of  other  means. 

(7)  Public  Education.  —  Our  modern  systems  of  public 
education  are  more  thorough  than  the  ancient,  notwithstanding 
the  fact  that  we  regard  the  individual  as  something  other  than  a 
mere  servant  of  the  state,  and  educate  him  first  of  all  for  himself. 

(8)  Sumptuary  Laws.  —  In  sumptuary  laws  ancient  states 
of  course  far  outran  modern  practice.     Modern  states  have  fore- 
gone most  attempts  to  make  citizens  virtuous  or  frugal  by  law. 
But  even  we  have  our  prohibition  enactments ;  and  we  have  had 
our  fines  for  swearing. 

1  This  is  clearly  shown  in  the  taking  over  of  the  railroads  by  the  govern- 
ment for  the  period  of  the  war. 


THE    FUNCTIONS   OF   GOVERNMENT.  57 

Summary.  —  Apparently  it  is  safe  to  say  with  regard  to 
the  functions  of  government  taken  as  a  whole  that,  even  as  be- 
tween ancient  and  modern  states,  uniformities  of  practice  far  out- 
number diversities  of  practice.  One  may  justly  conclude,  not  in- 
deed that  the  restraints  which  modern  states  put  upon  themselves 
are  of  little  consequence,  or  that  altered  political  conceptions  are 
not  of  the  greatest  moment  in  determining  important  questions 
of  government  and  even  the  whole  advance  of  the  race ;  but 
that  it  is  rather  by  gaining  practical  wisdom,  rather  by  long 
processes  of  historical  experience,  that  states  modify  their  prac- 
tices. New  theories  are  subsequent  to  new  experiences. 


IV. 
THE   OBJECTS   OF   GOVEKNMENT. 


Character  of  the  Subject.  —  Political  interest  and  con- 
troversy have  centred  nowhere  more  acutely  than  in  the  question, 
What  are  the  proper  objects  of  government?  This  is  one  of  those 
difficult  questions  upon  which  it  is  possible  for  many  sharply 
opposed  views  to  be  held  apparently  with  almost  equal  weight 
of  reason.  Its  central  difficulty  is  this,  that  it  is  a  question 
which  can  be  answered,  if  answered  at  all,  only  by  the  aid  of  a 
broad  and  careful  wisdom  whose  conclusions  are  based  upon  the 
widest  possible  inductions  from  the  facts  of  political  experience 
in  all  its  phases.  Such  wisdom  is  quite  beyond  the  capacity  of 
most  thinkers  and  actors  in  the  field  of  politics ;  and  the  conse- 
quence has  been  that  this  question,  perhaps  more  than  any  other 
in  the  whole  scope  of  political  science,  has  provoked  great  wars 
of  doctrine. 

The  Extreme  Views  held. — What  part  shall  govern- 
ment play  in  the  affairs  of  society  ?  —  that  is  the  question  which 
has  been  the  gauge  of  controversial  battle.  What  ought  the  func- 
tions of  government  to  be  ?  On  the  one  hand  there  are  extremists 
who  cry  constantly  to  government,  '  Hands  off,'  'laissez  faire,' 
1  laissez  passer,'  who  look  upon  every  act  of  government  which 
is  not  merely  an  act  of  police  with  jealousy ;  who  regard  govern- 
ment as  necessary,  but  as  a  necessary  evil ;  and  who  would  have 
government  hold  back  from  everything  which  could  by  any  possi- 
bility be  accomplished  by  individual  initiative  and  endeavor.  On 
the  other  hand,  there  are  those  who,  with  equal  extremeness  of 
view  in  the  opposite  direction,  would  have  society  lean  fondly 
upon  government  for  guidance  and  assistance  in  every  affair  of 
life  ;  who,  captivated  by  some  glimpse  of  public  power  and  benefi< 

58 


THE   OBJECTS  OF   GOVERNMENT.  59 

• 
cence  caught  in  the  pages  of  ancient  or  mediaeval  historian,  or  by 

some  dream  of  cooperative  endeavor  cunningly  imagined  by  the 
great  fathers  of  Socialism,  believe  that  the  state  can  be  made  a 
wise  foster  mother  to  every  member  of  the  family  politic.  Be- 
tween these  two  extremes,  again,  there  are  all  grades,  all  shades 
and  colors,  all  degrees  of  enmity  or  of  partiality  to  state  action. 

Historical  Foundation  for  Opposite  Views.  —  Enmity  to 
exaggerated  state  action,  even  a  keen  desire  to  keep  that  action 
down  to  its  lowest  possible  terms,  is  easily  furnished  with  im- 
pressive justification.  It  must  unreservedly  be  admitted  that 
history  abounds  with  warnings  of  no  uncertain  sort  against  in- 
dulging the  state  with  a  too  great  liberty  of  interference  with 
the  life  and  work  of  its  citizens.  Much  as  there  is  that  is  at- 
tractive in  the  political  life  of  the  city  states  of  Greece  and 
Rome,  in  which  the  public  power  was  suffered  to  be  omnipotent, 
—  their  splendid  public  spirit,  their  incomparable  organic  whole- 
ness, their  fine  play  of  rival  talents,  serving  both  the  common 
thought  and  the  common  action,  their  variety,  their  conception  of 
public  virtue, — there  is  also  much  to  blame,  —  their  too  wanton 
invasion  of  that  privacy  of  the  individual  life  in  which  alone 
family  virtue  can  dwell  secure,  their  callous  tyranny  over  mi- 
norities in  matters  which  might  have  been  left  to  individual 
choice,  their  sacrifice  of  personal  independence  for  the  sake  of 
public  solidarity,  their  hasty  average  judgments,  their  too  confi- 
dent trust  in  the  public  voice.  They,  it  is  true,  could  not  have 
had  the  individual  liberty  which  we  cherish  without  breaking 
violently  with  their  own  history,  with  the  necessary  order  of 
their  development ;  but  neither  can  we,  on  the  other  hand,  imi- 
tate them  without  an  equally  violent  departure  from  our  own 
normal  development  and  a  reversion  to  the  now  too  primitive 
methods  of  their  pocket  republics. 

Unquestionable  as  it  is  that  mediaeval  history  affords 
many  seductive  examples  of  an  absence  of  grinding,  heartless 
competition  and  a  strength  of  mutual  interdependence,  confidence, 
and  helpfulness  between  class  and  class  such  as  the  modern  econ- 
omist may  be  pardoned  for  wishing  to  see  revived;  and  true 
though  it  be  that  the  history  of  Prussia  gives  at  least  colorable 
justification  to  the  opinion  that  state  interference  may  under  some 


60  THE    OBJECTS    OF    GOVERNMENT. 

• 

circumstances  be  of  benefit  for  the  industrial  upbuilding  of  a 
state,  it  must,  on  the  other  hand,  be  remembered  that  neither  the 
feudal  system,  nor  the  mediaeval  guild  system,  nor  the  paternalism 
of  Frederic  the  Great  can  be  rehabilitated  now  that  the  revolutions 
in  industry,  in  church,  and  in  state  have  been  wrought  which  have 
been  witnessed  since  the  beginning  of  the  nineteenth  century  ;  and 
that,  even  if  these  systems  of  the  past  could  be  revived,  we 
should  be  sorely  puzzled  to  reinstate  their  blessings  without  re- 
storing at  the  same  time  their  acknowledged  evils.  No  student 
of  history  can  wisely  censure  those  who  protest  against  state 
paternalism. 

The  State  a  Beneficent  and  Indispensable  Organ  of 
Society.  —  It  by  no  means  follows,  nevertheless,  that  because  the 
state  may  unwisely  interfere  in  the  life  of  the  individual,  it 
must  be  pronounced  in  itself  and  by  nature  a  necessary  evil. 
It  is  no  more  an  evil  than  is  society  itself.  It  is  the  organic 
body  of  society :  without  it  society  would  be  hardly  more  than 
a  mere  abstraction.  If  the  name  had  not  been  restricted  to  a 
single,  narrow,  extreme,  and  radically  mistaken  class  of  think- 
ers, we  ought  all  to  regard  ourselves  and  to  act  as  socialists,  that 
is,  believers  in  the  wholesomeness  and  beneficence  of  the  body 
politic. 

If  the  history  of  society  proves  anything,  it  proves  the  absolute 
naturalness  of  government,  its  rootage  in  the  nature  of  man,  its 
origin  in  kinship,  and  its  identification  with  all  that  makes  man 
superior  to  the  brute  creation.  Individually  man  is  but  poorly 
equipped  to  dominate  other  animals :  his  lordship  comes  by  com- 
bination, his  strength  is  concerted  strength,  his  supremacy  is  the 
supremacy  of  union.  Outside  of  society  man's  mind  can  avail 
him  little  as  an  instrument  of  supremacy  ;  and  government  is  the 
visible  form  of  society.  If  society  itself  be  not  an  evil,  neither 
surely  is  government  an  evil,  for  government  is  the  indispensable 
organ  of  society. 

Every  means,  therefore,  by  which  society  may  be  perfected 
through  the  instrumentality  of  government,  every  means  by 
which  individual  rights  can  be  fitly  adjusted  and  harmonized 
with  public  duties,  by  which  individual  self-development  may  be 
made  at  once  to  serve  and  to  supplement  social  development, 


THE   OBJECTS    OF   GOVERNMENT.  61 

ought  certainly  to  be  diligently  sought,  and,  when  found,  sedu- 
lously fostered  by  every  friend  of  society.  Such  is  the  view  to 
which  every  true  lover  of  his  kind  ought  to  adhere  with  the  full 
grip  of  every  noble  affection  that  is  in  him. 

Socialism  and  the  Modern  Industrial  Organization.  —  It 
is  possible,  indeed,  to  understand  and  even  in  a  measure  to  sym- 
pathize with,  the  enthusiasm  of  those  special  classes  whom  we 
have  dubbed  with  the  too  great  name  of  f  Socialists/  The 
schemes  of  social  reform  and  regeneration  which  they  support 
with  so  much  ardor,  however  mistaken  they  may  be,  have  the 
right  end  in  view:  they  seek  to  bring  the  individual  with  his 
special  interests,  personal  to  himself,  into  complete  harmony  with 
society  with  its  general  interests,  common  to  all.  Their  method 
is  always  some  sort  of  cooperation,  meant  to  perfect  mutual  help- 
fulness. They  speak,  too,  a  revolt  from  selfish,  misguided  in- 
dividualism ;  and  certainly  modern  individualism  has  much  about 
it  that  is  hateful,  too  hateful  to  last. 

The  modern  industrial  organization  has  so  distorted  competition 
as  sometimes  to  put  it  into  the  power  of  some  to  tyrannize  over 
many,  as  to  enable  the  rich  and  the  strong  to  combine  against 
the  poor  and  the  weak.  It  has  given  a  woful  material  meaning 
to  that  spiritual  law  that  "  to  him  that  hath  shall  be  given, 
and  from  him  that  hath  not  shall  be  taken  away  even  the  little 
that  he  seemeth  to  have/'  It  has  magnified  that  self-interest 
which  is  grasping  selfishness  and  has  thrust  out  love  and  com- 
passion not  only,  but  free  competition  in  part,  as  well.  Surely 
it  would  be  better,  exclaims  the  Socialist,  altogether  to  stamp 
out  competition  by  making  all  men  equally  subject  to  the  public 
order,  to  an  imperative  law  of  social  cooperation!  But  the 
Socialist  mistakes  :  it  is  not  competition  that  kills,  but  unfair 
competition,  the  pretence  and  form  of  it  where  the  substance 
and  reality  of  it  cannot  exist. 

A  Middle  Ground.  —  And  there  is  a  middle  ground.  The 
schemes  which  Socialists  have  proposed  society  cannot  accept  and 
live ;  and  no  scheme  which  involves  the  complete  control  of  the 
individual  by  government  can  be  devised  which  differs  from  theirs 
very  much  for  the  better.  A  truer  doctrine  must  be  found,  which 


62  THE   OBJECTS   OF   GOVERNMENT. 

gives  wide  freedom  to  the  individual  for  his  self-development  and 
yet  guards  that  freedom  against  the  competition  that  kills,  and 
reduces  the  antagonism  between  self-development  and  social 
development  to  a  minimum.  And  such  a  doctrine  can  be  formu- 
lated, surely,  without  too  great  vagueness. 

The  Objects  of  Society  the  Objects  of  Government.  —  Gov- 
ernment is  the  organ  of  society,  its  only  potent  and  universal 
instrument :  its  objects  must  be  the  objects  of  society.  What, 
then,  are  the  objects  of  society  ?  What  is  society  ?  It  is  an 
association  of  individuals  organized  for  mutual  aid.  Mutual 
aid  to  what  ?  To  self-development.  The  hope  of  society  lies  in 
an  infinite  individual  variety,  in  the  freest  possible  play  of  indi- 
vidual forces :  only  in  that  can  it  find  that  wealth  of  resource 
which  constitutes  civilization,  with  all  its  appliances  for  satisfying 
human  wants  and  mitigating  human  sufferings,  all  its  incitements 
to  thought  and  spurs  to  action.  It  should  be  the  end  of  government 
to  assist  in  accomplishing  the  objects  of  organized  society.  There 
must  be  constant  adjustments  of  governmental  assistance  to  the 
needs  of  a  changing  social  and  industrial  organization.  Not  license 
of  interference  on  the  part  of  government,  but  only  strength,  and 
adaptation  of  regulation.  The  regulation  that  I  mean  is  not  inter- 
ference :  it  is  the  equalization  of  conditions,  so  far  as  possible,  in 
all  branches  of  endeavor ;  and  the  equalization  of  conditions  is  the 
very  opposite  of  interference. 

Every  rule  of  development  is  a  rule  of  adaptation,  a  rule 
for  meeting  '  the  circumstances  of  the  case ' ;  but  the  circumstances 
of  the  case,  it  must  be  remembered,  are  not,  so  far  as  government 
is  concerned,  the  circumstances  of  any  individual  case,  but  the 
circumstances  of  society's  case,  the  general  conditions  of  social 
organization.  The  case  for  society  stands  thus:  the  individual 
must  be  assured  the  best  means,  the  best  and  fullest  opportunities, 
for  complete  self-development :  in  no  other  way  can  society  itself 
gain  variety  and  strength.  But  one  of  the  most  indispensable 
conditions  of  opportunity  for  self-development  government  alone, 
society's  controlling  organ,  can  supply.  All  combinations  which 
necessarily  create  monopoly,  which  necessarily  put  and  keep  in- 
dispensable means  of  industrial  or  social  development  in  the 
hands  of  a  few,  and  those  few,  not  the  few  selected  by  society 


THE   OBJECTS   OP   GOVERNMENT.  68 

itself,  but  the  few  selected  by  arbitrary  fortune,  must  be  under 
either  the  direct  or  the  indirect  control  of  society.  To  society  alone 
can  the  power  of  dominating  by  combination  belong.  It  cannot 
suffer  any  of  its  members  to  enjoy  such  a  power  for  their  own  pri- 
vate gain  independently  of  its  own  strict  regulation  or  oversight. 

Natural  Monopolies.  —  It  is  quite  possible  to  distinguish 
natural  monopolies  from  other  classes  of  undertakings ;  their  dis- 
tinctive marks  are  thus  enumerated  by  Sir  T.  H.  Farrer  in  his 
excellent  little  volume  on  The  State  in  its  Relation  to  Trade  which 
forms  one  of  the  well-known  English  Citizen  series :  * 

"  1.  What  they  supply  is  a  necessary,"  a  necessary,  that  is,  to 
life,  like  water,  or  a  necessary  to  industrial  action,  like  railroad 
transportation. 

"2.  They  occupy  peculiarly  favored  spots  or  lines  of  land." 
Here  again  the  best  illustration  is  afforded  by  railroads  or  by 
telegraph  lines,  by  water-works,  etc. 

"  3.  The  article  or  convenience  they  supply  is  used  at  the  place 
and  in  connection  with  the  plant  or  machinery  by  which  it  is  sup- 
plied " ;  that  is  to  say,  at  the  favored  spots  or  along  the  favored 
lines  of  land. 

"  4.  This  article  or  convenience  can  in  general  be  largely,  if  not 
indefinitely  increased,  without  proportionate  increase  in  plant  and 
capital " ;  that  is  to  say,  the  initial  outlay  having  been  made,  the 
favored  spot  or  line  of  land  having  been  occupied,  every  subse- 
quent increase  of  business  will  increase  profits  because  it  will  not 
proportionately,  or  anything  like  proportionately,  increase  the 
outlay  for  services  or  machinery  needed.  Those  who  are  outside 
of  the  established  business,  therefore,  are  upon  an  equality  of  com* 
petition  neither  as  regards  available  spots  or  lines  of  land  nor  as 
regards  opportunities  to  secure  business  in  a  competition  of  rates. 

"  5.  Certain  and  harmonious  arrangement,  which  can  only  be 
attained  by  unity,  are  paramount  considerations."  Wide  and 
systematic  organization  is  necessary. 

Such  enterprises  invariably  give  to  a  limited  number  of  persons 
the  opportunity  to  command  certain  necessaries  of  life,  of  comfort,  or  of 
industrial  success  against  their  fellow-countrymen  and  for  their  own 

i  P.  71.  Sir  Thomas  Farrer  was  Permanent  Secretary  of  the  English 
Board  of  Trade. 


64  THE   OBJECTS    OF    GOVERNMENT. 

advantage.  Once  established  in  any  field,  there  can  be  no  real  competi 
tion  between  them  and  those  who  would  afterwards  enter  that  field.  No 
agency  should  be  suffered  to  have  such  control  except  a  public  agenc.y 
which  may  be  compelled  by  public  opinion  to  act  without  selfish  narrow- 
ness, upon  perfectly  equal  conditions  as  towards  all,  or  some  agency  upon 
which  the  government  may  keep  a  strong  hold  of  regulation. 

Control  not  necessarily  Administration.  —  Society  can  by 
no  means  afford  to  allow  the  use  for  private  gain  and  without 
regulation  of  undertakings  necessary  to  its  own  healthful  and 
efficient  operation  and  yet  of  a  sort  to  exclude  equality  in  compe- 
tition. Experience  has  proved  that  the  self-interest  of  those  who 
have  controlled  such  undertakings  for  private  gain  is  not  coinci- 
dent with  the  public  interest:  even  enlightened  self-interest  may 
often  discover  means  of  illicit  pecuniary  advantage  in  unjust  dis- 
criminations between  individuals  in  the  use  of  such  instrumentali- 
ties. But  the  proposition  that  the  government  should  control 
such  dominating  organizations  of  capital  may  by  no  means  be 
wrested  to  mean  by  any  necessary  implication  that  the  government 
should  itself  administer  those  instrumentalities  of  economic  action 
which  cannot  be  used  except  as  monopolies.  In  such  cases,  as  Sir 
T.  H.  Farrer  says,  "  there  are  two  great  alternatives.  (1)  Owner- 
ship and  management  by  private  enterprise  and  capital  under 
regulation  by  the  state.  (2)  Ownership  and  management  by  Gov- 
ernment, central  or  local."  Government  regulation  may  in  most 
cases  suffice.  Indeed,  such  are  the  difficulties  in  the  way  of  estab- 
lishing and  maintaining  careful  business  management  on  the  part 
of  government,  that  control  ought  to  be  preferred  to  direct  admin- 
istration in  as  many  cases  as  possible,  —  in  every  case  in  which 
control  without  administration  can  be  made  effectual. 

Equalization  of  Competition.  —  There  are  some  things 
outside  the  field  of  natural  monopolies  in  which  individual  action 
cannot  secure  equalization  of  the  conditions  of  competition:  and 
in  these  also,  as  in  the  regulation  of  monopolies,  the  practice  of 
governments,  of  our  own  as  well  as  of  others,  has  been  decisively 
on  the  side  of  governmental  regulation.  By  forbidding  child 
labor,  by  supervising  the  sanitary  conditions  of  factories,  by  limit- 
ing the  employment  of  women  in  occupations  hurtful  to  theii 
health,  by  instituting  official  tests  of  the  purity  or  the  quality  oJ 


THE   OBJECTS   OF   GOVERNMENT.  65 


goods  sold,  by  limiting  hours  of  labor  in  certain  trades,  by  a 
dred  and  one  limitations  of  the  power  of  unscrupulous  or  heartless 
men  to  out-do  the  scrupulous  and  merciful  in  trade  or  industry, 
government  has  assisted  equity.  Those  who  would  act  in  mod- 
eration and  good  conscience  in  cases  where  moderation  and  good 
conscience,  if  indulged,  require  an  increased  outlay  of  money,  in 
better  ventilated  buildings,  in  greater  care  as  to  the  quality  of 
goods,  etc.,  cannot  be  expected  to  act  upon  their  principles  so 
long  as  more  grinding  conditions  for  labor  or  a  more  unscrupulous 
use  of  the  opportunities  of  trade  secure  to  the  unconscientious  an 
unquestionable  and  sometimes  even  a  permanent  advantage  ;  they 
have  only  the  choice  of  denying  their  consciences  or  retiring  from 
business.  In  scores  of  such  cases  government  has  intervened  and 
will  intervene;  but  by  way,  not  of  interference,  by  way,  rather, 
of  making  competition  equal  between  those  who  would  rightfully 
conduct  enterprise  and  those  who  basely  conduct  it.  It  is  in  this 
way  that  society  protects  itself  against  permanent  injury  and 
deterioration,  and  secures  healthful  equality  of  opportunity  for 
self-development. 

Society  greater  than  Government.  —  Society,  it  must  al- 
ways be  remembered,  is  vastly  bigger  and  more  important  than 
its  instrument,  Government.  Government  should  serve  Society, 
by  no  means  rule  or  dominate  it.  Government  should  not  be 
made  an  end  in  itself;  it  is  a  means  only,  —  a  means  to  be  freely 
adapted  to  advance  the  best  interests  of  Society.  The  State 
exists  for  the  sake  of  Society,  not  Society  for  the  sake  of  the 
State. 

Natural  Limits  to  State  Action.  —  And  that  there  are 
natural  and  imperative  limits  to  state  action  no  one  who  seriously 
studies  the  structure  of  society  can  doubt.  The  limit  of  state 
functions  is  the  limit  of  necessary  cooperation  on  the  part  of  So- 
ciety as  a  whole,  the  limit  beyond  which  such  combination  ceases 
to  be  imperative  for  the  public  good  and  becomes  merely  con- 
venient for  industrial  or  social  enterprise.  Cooperation  is  neces- 
sary in  the  sense  here  intended  when  it  is  indispensable  to  the 
equalization  of  the  conditions  of  endeavor,  indispensable  to  the 
maintenance  of  uniform  rules  of  individual  rights  and  relation- 
ships, indispensable  because  to  omit  it  would  inevitably  be  to 


66  THE   OBJECTS    OF    GOVERNMENT. 

hamper  or  degrade  some  for  the  advancement  of  others  in  the 
scale  of  wealth  and  social  standing. 

There  are  relations  in  which  men  invariably  have  need 
of  each  other,  in  which  universal  cooperation  is  the  indispensa- 
ble condition  of  even  tolerable  existence.  Only  some  universal 
authority  can  make  opportunities  equal  as  between  man  and  man. 
The  divisions  of  labor  and  the  combinations  of  commerce  may  for 
the  most  part  be  left  to  contract,  to  free  individual  arrangement, 
but  the  equalization  of  the  conditions  which  affect  all  alike  may 
no  more  be  left  to  individual  initiative  than  may  the  organiza- 
tion of  government  itself.  Churches,  clubs,  corporations,  frater- 
nities, guilds,  partnerships,  unions,  have  for  their  ends  one  or 
another  special  enterprise  for  the  development  of  man's  spiritual 
or  material  well-being :  they  are  all  more  or  less  advisable.  But 
the  family  and  the  state  have  as  their  end  a  general  enterprise 
for  the  betterment  and  equalization  of  the  conditions  of  individual 
development :  they  are  indispensable. 

The  point  at  which  public  combination  ceases  to  be 
imperative  is  not  susceptible  of  clear  indication  in  general 
terms ;  but  it  is  not  on  that  account  indistinct.  The  bounds  of 
family  association  are  not  indistinct  because  they  are  marked 
only  by  the  immaturity  of  the  young  and  by  the  parental  and 
filial  affections,  — things  not  all  of  which  are  defined  in  the  law. 
The  rule  that  the  state  should  do  nothing  which  is  equally  pos- 
sible under  equitable  conditions  to  optional  associations  is  a 
sufficiently  clear  line  of  distinction  between  governments  and 
corporations.  Those  who  regard  the  state  as  an  optional,  conven- 
tional union  simply,  a  mere  partnership,  open  wide  the  doors  to 
the  worst  forms  of  socialism.  Unless  the  state  has  a  nature  which 
is  quite  clearly  defined  by  that  invariable,  universal,  immutable 
mutual  interdependence  which  runs  beyond  the  family  relations 
and  cannot  be  satisfied  by  family  ties,  we  have  absolutely  no  cri- 
terion by  which  we  can  limit,  except  arbitrarily,  the  activities  of 
the  state.  The  criterion  supplied  by  the  native  necessity  of  state 
relations,  on  the  other  hand,  banishes  such  license  of  state  action. 

The  state,  for  instance,  ought  not  to  supervise  private  morals 
because  they  belong  to  the  sphere  of  separate  individual  responsibility, 
not  to  the  sphere  of  mutual  dependence.  Thought  and  conscience  art 


THE   OBJECTS    OF   GOVERNMENT.  67 

private.  Opinion  is  optional.  The  state  may  intervene  only  where  com- 
mon action,  uniform  law  are  indispensable.  Whatever  is  merely  con- 
venient is  optional,  and  therefore  not  an  affair  for  the  state.  Churches 
are  spiritually  convenient ;  joint-stock  companies  are  capitalistically  con- 
venient ;  but  when  the  state  constitutes  itself  a  church  or  a  mere  businesg 
association  it  institutes  a  monopoly  no  better  than  others.  It  should  do 
nothing  which  is  not  in  any  case  both  indispensable  to  social  or  industrial 
life  and  necessarily  monopolistic. 

The  Family  and  the  State.  —  It  is  the  proper  object  of  the 
family  to  mould  the  individual,  to  form  him  in  the  period  of  im- 
maturity in  the  faiths  of  religion  and  in  the  practice  of  morality 
and  obedience.  This  period  of  subordination  over,  he  is  called 
out  into  an  independent,  self-directive  activity.  The  ties  of 
family  affection  still  bind  him,  but  they  bind  him  with  silken, 
not  with  iron  bonds.  He  has  left  his  i  minority '  and  reached  his 
'  majority.'  It  is  the  proper  object  of  the  state  to  give  leave  to 
his  individuality,  in  order  that  that  individuality  may  add  its 
quota  of  variety  to  the  sum.  of  national  activity  Family  disci- 
pline is  variable,  selective,  formative :  it  must  lead  the  individual. 
But  the  state  must  not  lead.  It  must  create  conditions,  but  not 
mould  individuals.  Its  discipline  must  be  invariable,  uniform, 
impersonal.  Family  methods  rest  upon  individual  inequality, 
state  methods  upon  individual  equality.  Family  order  rests  upon 
tutelage,  state  order  upon  franchise,  upon  privilege. 

The  State  and  Education.  —  In  one  field  the  state  would 
seem  at  first  sight  to  usurp  the  family  function,  the  field,  namely, 
of  education.  But  such  is  not  in  reality  the  case.  Education  is 
the  proper  office  of  the  state  for  two  reasons,  both  of  which  come 
within  the  principles  we  have  been  discussing.  Popular  education 
is  necessary  for  the  preservation  of  those  conditions  of  freedom, 
political  and  social,  which  are  indispensable  to  free  individual 
development.  And,  in  the  second  place,  no  instrumentality  less 
universal  in  its  power  and  authority  than  government  can  secure 
popular  education.  In  brief,  in  order  to  secure  popular  education 
the  action  of  society  as  a  whole  is  necessary ;  and  popular  educa- 
tion is  indispensable  to  that  equalization  of  the  conditions  of  per- 
sonal development  which  we  have  taken  to  be  the  proper  object 
of  society.  Without  popular  education,  moreover,  no  government 


68  THE   OBJECTS   OF   GOVERNMENT. 

which  rests  upon  popular  action  can  long  endure :  the  peopte  must 
be  schooled  in  the  knowledge,  and  if  possible  in  the  virtues,  upon 
which  the  maintenance  and  success  of  free  institutions  depend. 
No  free  government  can  last  in  health  if  it  lose  hold  of  the  tradi- 
tions of  its  history,  and  in  the  public  schools  these  traditions  may 
be  and  should  be  sedulously  preserved,  carefully  replanted  in  the 
thought  and  consciousness  of  each  successive  generation. 

Historical  Conditions  of  Governmental  Action.  —  What- 
ever view  be  taken  in  each  particular  case  of  the  rightfulness  or 
advisability  of  state  regulation  and  control,  one  rule  there  is  which 
may  not  be  departed  from  under  any  circumstances,  and  that  is 
the  rule  of  historical  continuity.  In  politics  nothing  radically 
novel  may  safely  be  attempted.  No  result  of  value  can  ever  be 
reached  in  politics  except  through  slow  and  gradual  development, 
the  careful  adaptations  and  nice  modifications  of  growth.  Noth- 
ing may  be  done  by  leaps.  More  than  that,  each  people,  each 
nation,  must  live  upon  the  lines  of  its  own  experience.  Nations 
are  no  more  capable  of  borrowing  experience  than  individuals  are. 
The  histories  of  other  peoples  may  furnish  us  with  light,  but  they 
cannot  furnish  us  with  conditions  of  action.  Every  nation  must 
constantly  keep  in  touch  with  its  past ;  it  cannot  run  towards  its 
ends  around  sharp  corners. 

Summary.  —  This,  then,  is  the  sum  of  ':he  whole  matter : 
the  end  of  government  is  the  facilitation  of  the  objects  of  society. 
The  rule  of  governmental  action  is  necessary  cooperation.  The 
method  of  political  development  is  conservative  adaptation,  shap- 
ing old  habits  into  new  ones,  modifying  old  means  to  accomplish 
new  ends. 


V. 
LAW:   ITS   NATURE   AND   DEVELOPMENT. 


What  is  Law  ?  —  Law  is  the  will  of  the  State  concerning 
its  own  organization  and  conduct  and  the  civic  conduct  of  those 
under  its  authority.  This  will  may  be  more  or  less  formally  ex- 
pressed :  it  may  speak  either  in  custom  or  in  specific  enactment. 
Law  may,  moreover,  be  the  will  either  of  a  primitive  family- 
community  such  as  we  see  in  the  earliest  periods  of  history,  or  of 
a  highly  organized,  fully  self-conscious  State  such  as  those  of  our 
own  day.  But  for  the  existence  of  Law  there  is  needed  in  all 
cases  alike  (1)  a  community  capable  of  having  a  will  of  its  own, 
and  (2)  some  clearly  recognized  body  of  rules  to  which  that  com- 
munity has,  whether  by  custom  or  enactment,  given  life,  character, 
and  effectiveness.  Law  is  that  portion  of  the  established  thought 
and  habit  which  has  gained  distinct  and  formal  recognition  in  the 
shape  of  uniform  rules  backed  by  the  authority  and  power  of 
Government.  The  nature  of  each  State,  therefore,  will  be  reflected 
in  its  law ;  in  its  law,  too,  will  appear  the  functions  with  which  it 
charges  itself ;  and  in  its  law  will  it  be  possible  to  read  its  history. 

The  Development  of  Law :  its  Sources. — Law  thus  follows 
in  its  development,  with  slow,  sometimes  with  uneven,  but  gener- 
ally with  quite  certain  steps,  the  evolution  of  the  character,  the 
purposes,  and  the  will  of  the  organized  community  whose  creation 
it  is.  The  sources  whence  it  springs  are  as  various  as  the  means 
by  which  a  community  can  shape  and  express  its  will  as  a  body 
politic. 

1.  Custom.1  —  The  earliest  source  of  Law  is  Custom,  and 
custom  is  formed  no  one  can  say  definitely  how,  except  that  it 

1 1  adopt  here  the  classification  usual  in  English  writings  on  Jurisprudence. 
See,  e.g.,  T.  E.  Holland,  Jurisprudence,  pp.  48  et  seq. 


TO  LAW  :    ITS   NATURE   AND   DEVELOPMENT. 

is  shaped  by  the  cooperative  action  of  the  whole  community,  and 
not  by  any  kingly  or.  legislative  command.  It  is  not  formed 
always  in  the  same  way;  but  it  always  rests  upon  the  same 
foundation,  upon  the  general  acceptance  of  a  certain  course  of 
action  as  best  or  most  convenient.  Whether  custom  originate  in 
the  well-nigh  accidental  formation  of  certain  habits  of  action  or 
in  a  conscious  effort  on  the  part  of  a  community  to  adjust  its 
practices  more  perfectly  to  its  social  and  political  objects,  it 
becomes,  when  once  it  has  been  formed  and  accepted  by  the  pub- 
lic authority,  a  central  part  of  Law.  It  is  difficult,  if  not  impos- 
sible, to  discover  the  exact  point  at  which  custom  passes  from 
the  early  inchoate  state  in  which  it  is  merely  tending  to  become 
the  express  and  determinate  purpose  of  a  community  into  the 
later  stage  in  which  it  becomes  Law;  but  we  can  say  with  assur- 
ance that  it  becomes  Law  only  when  it  wins  the  support  of  a 
definite  authority  within  the  community.  It  is  not  Law  if  men 
feel  free  to  depart  from  it. 

Under  the  reign  of  customary  law  that  state  of  things  actually 
did  exist  which  modern  law  still  finds  it  convenient  to  take  for  granted : 
everybody  knew  what  the  law  was.  The  Teutonic  hundred-moots,  for 
example,  the  popular  assemblies  which  regularly  tried  cases  under  the 
early  polity  of  our  own  ancestors,  declared  the  law  by  the  public  voice  ; 
the  people  themselves  determined  what  it  was  and  how  it  should  be 
applied.  Custom  grew  up  in  the  habits  of  the  people  ;  they  consciously 
or  unconsciously  originated  it ;  to  them  it  was  known  and  by  them  it  was 
declared. 

2.  Religion.  —  In  the  earliest  times  Custom  and  Keli- 
gion  were  almost  indistinguishable;  a  people's  customs  bore  on 
every  lineament  the  likeness  of  its  religion.  And  in  later  stages 
of  development  Religion  was  still  a  prolific  source  of  Custom. 
No  primitive  community  contained  any  critic  who  could,  even  in 
his  secret  thought,  separate  Law  from  Eeligion.  All  rules  of  life 
bore  for  the  antique  mind  the  same  sanction  (page  15).  There 
were  not  in  its  conception  rules  moral  and  rules  political :  poli- 
tics, morals,  and  religion  were  indistinguishable  parts  of  one 
great  indivisible  Law  of  Conduct.  Eeligion  and  Politics  very 
soon,  it  is  true,  came  to  have  different  ministers.  In  name  often, 
if  not  always  in  fact,  the  priest  was  distinct  from  the  magistrate. 


LAW:    ITS   NATURE   AND   DEVELOPMENT.  71 

But  throughout  a  very  long  development,  from  the  time  of  Greece 
and  Home,  the  magistrate  either  retained  priestly  functions  or 
was  dominated  by  rules  which  the  priest  declared  and  of  which 
the  priest  was  the  custodian. 

Thus  the  early  law  of  Rome  was  little  more  than  a  body  of 
technical  religious  rules,  a  system  of  means  for  obtaining  individual  rights 
through  the  proper  carrying  out  of  certain  religious  formulae  ;  and  it 
marked  the  beginning  of  the  movement  of  Roman  law  towards  a  broad 
and  equitable  system  of  justice  when  these  rules  of  procedure  were 
changed  from  sacerdotal  secrets  into  published  law  by  the  publication  of 
the  Twelve  Tables. 

3.  Adjudication.  —  One  of  the  busiest  and  one  of  the 
most  useful,  because  watchful,  open-minded,  and  yet  conserva- 
tive, makers  of  Law  under  all  systems  has  been  the  magistrate, 
the  Judge.     It  is  he  who  in  his  decisions  recognizes  and  adopts 
Custom,  and  so  gives  it  the  decisive  support  of  the  public  power; 
it  is  he  who  shapes  written  enactments  into  suitability  to  indi- 
vidual cases  and  thus  gives  them  due  flexibility  and  a  free  devel- 
opment.     He  is  the  authoritative  voice  of  the  community  in 
giving  specific  application  to  its  Law:  and  in  doing  this  he  ne- 
cessarily becomes,  because  an  interpreter,  also  a  maker  of  Law. 
Whether  deliberately  or  unconsciously,  in  expounding  and  ap- 
plying he  moulds  and  expands  the  Law.     It  is  his  legitimate 
function  to  read  Law  in  the  light  of  his  own  sober  and  consci- 
entious judgment  as  to  what  is  reasonable  and  just  in  custom, 
what  practicable,  rational,  or  equitable  in  legislation. 

It  is  this  '  judge-made '  law  which  is  to  be  found,  and  is  there- 
fore so  diligently  sought  for,  in  the  innumerable  law  Reports  cited  in  our 
courts.  Except  under  extraordinary  circumstances,  our  courts  and  those 
of  England  will  always  follow  decisions  rendered  in  similar  cases  by 
courts  of  equal  jurisdiction  in  the  same  state.  A  fortiori  do  they  follow 
the  decisions  of  the  highest  courts :  by  these  they  are  in  a  sense  bound. 
In  the  courts  of  the  continent  of  Europe,  on  the  other  hand,  decisions  are 
listened  to  as  important  expressions  of  opinion,  but  not  as  conclusive 
authority  :  are  heard  much  as  our  own  courts  or  those  of  England  hear 
the  decisions  of  courts  of  other  states  acting  under  like  laws  or  similar 
circumstances.  \ 

4.  Equity.  —  Equity  too  is  judge-made  Law ;  but  it  is 
made,  not  in  interpretation  of,  but  in  addition  to,  the  laws  which 


72  LAW  :    ITS    NATURE    AND    DEVELOPMENT. 

already  exist.  The  most  conspicuous  types  of  such  Law  are  the 
decisions  of  the  Roman  Praetor  and  those  of  the  English  Chan- 
cellor. These  decisions  were  meant  to  give  relief  where  existing 
law  afforded  none.  The  Praetor  declared,  for  instance,  that  he 
would  allow  certain  less  formal  processes  than  had  hitherto  been 
permitted  to  secure  rights  of  property  or  of  contract,  of  marriage 
or  of  control,  etc.  The  English  Chancellor,  in  like  manner,  as 
keeper  of  the  king's  judicial  conscience,  supplied  remedies  in  cases 
for  which  the  Common  Law  had  no  adequate  processes,  and  thus 
relieved  suitors  of  hardships  they  might  otherwise  have  suffered 
from  the  fixity  or  excessive  formality  of  the  Common  Law,  and 
enabled  them  in  many  things  to  obtain  their  substantial  rights 
without  technical  difficulty. 

After  the  official  decrees  of  the  Praetors  had  been  codified  by 
the  Prsetor  Salvius  lulianus,  in  the  time  of  the  Emperor  Hadrian,  and 
still  more  after  they  had  been  embodied  in  the  Code  of  Justinian,  the 
Corpus  Juris  Civilis,  the  Prsetor 's  '  equity '  became  as  rigid  and  deter- 
minate as  the  law  which  it  had  been  its  function  to  mend  and  ameliorate. 
In  the  same  manner,  our  own  state  codes,  many  of  which  have  fused 
law  and  equity  in  the  same  courts  and  under  common  forms  of  procedure, 
have  given  equity  the  sanction  and  consequently  the  fixity  of  written 
law.  The  English  Judicature  Act,  also,  of  1873,  merging,  as  it  does, 
the  common-law  and  equity  courts  into  a  single  homogeneous  system, 
shows  at  least  that  a  strong  tendency  in  the  same  direction  exists  in  Eng- 
land. The  adjustments  of  Equity  are  less  needed  now  that  legislation  is 
constantly  active  in  mending  old  and  creating  new  law  and,  when  neces- 
sary, new  procedure. 

In  the  same  case  with  Equity  must  be  classed  the  numerous  so- 
called  'fictitious  actions'  which  were  the  invention  of  the  common-law 
courts  and  which,  by  means  of  imaginary  suitors  or  imaginary  transac- 
tions, duly  recorded  as  if  real,  enabled  things  to  be  done  and  rights 
acquired  which  would  have  been  impossible  under  any  genuine  process 
of  the  Common  Law. 

5.  Scientific  Discussion.  —  The  carefully  formed  opin- 
ions of  learned  text-writers  have  often  been  accepted  as  deci- 
sive of  the  Law :  more  often  under  the  Eoman  system,  however, 
than  under  our  own,  though  even  we  have  our  Cokes,  our 
Blackston.es,  our  Storys,  and  our  Kents,  whom  our  courts  hear 
with  the  greatest  possible  respect.  It  is  the  proper  function 
of  legal  science  to  interpret  the  law,  not  piecemeal,  as  the 


LAW:    ITS   NATURE   AND   DEVELOPMENT.  73 

courts  must,  but  in  such  way  as  to  bring  all  its  parts  to  their  full 
development  as  doctrine  and  to  their  complete  adjustment  as 
members  of  a  living  system  of  thought  and  practice;  to  give  the 
law  system,  study  the  conditions  and  forms  of  its  genesis  and 
development,  and  assist  courts  and  legislatures  alike  in  their 
functions  of  adaptation  and  creation. 

6.  Legislation. — That  deliberate  formulation  of  new 
Law  to  which  the  name  Legislation  is  given  is,  for  us  of  the 
modern  time,  the  most  familiar  as  well  as  the  most  prolific 
source  of  Law.  For  us  Legislation  is  the  work  of  representa- 
tive bodies  almost  exclusively;  but  representation  is  no  part 
of  the  essential  character  of  the  legislative  act.  Absolute  mag- 
istrates or  kings  have  in  all  stages  of  history  been,  under  one 
system  or  another,  makers  of  laws.  Whether  acting  under  the 
sanction  of  custom  or  under  the  more  artificial  arrangements  of 
highly  developed  constitutions,  father  or  praetor,  king  or  archon 
has  been  a  lawgiver.  So,  too,  the  assemblies  of  free  men  which, 
alike  in  Greece  and  in  Rome,  constituted  the  legislative  authority 
were  not  representative,  but  primary  bodies,  like  the  Lands: 
gemeinden  of  the  smaller  Swiss  cantons. 

Representation  came  in  with  the  Germans ;  and  with  the 
critical  development  of  institutions  which  the  modern  world  has 
seen  many  new  phases  of  Legislation  have  appeared.  Modern 
law  has  brought  forth  those  great  private  corporations  whose 
bye-laws  are  produced  by  what  may  very  fitly  be  called  private 
legislative  action.  We  have,  too,  on  the  same  model,  chartered 
governments,  with  legislatures  acting  under  special  grants  of 
law-making  power.  Legislation  has  had  and  is  having  a  notable 
development,  and  is  now  the  almost  exclusive  means  of  the 
formulation  of  new  Law.  Custom  of  the  older  sort,  which  gave 
us  the  great  Common  Law,  has  been  in  large  part  superseded 
by  acts  of  legislation ;  Religion  stands  apart,  giving  law  only  to 
the  conscience ;  Adjudication  is  being  more  and  more  restricted 
by  codification ;  Equity  is  being  merged  in  the  main  body  of  the 
Law  by  enactment ;  Scientific  Discussion  now  does  hardly  more 
than  collate  cases :  all  means  of  formulating  Law  tend  to  be 
swallowed  up  in  the  one  great,  deep,  and  broadening  source, 
Legislation. 


74  LAW  :    ITS   NATURE   AND   DEVELOPMENT. 

Custom  again.  —  Custom  at  last  enters  again,  with  a 
new  aspect  and  a  new  method.  After  judges  have  become  the 
acknowledged  and  authoritative  mouthpieces  of  Equity  and  of 
the  interpretative  adaptation  of  customary  or  enacted  Law ;  after 
scientific  writers  have  been  admitted  to  power  in  the  systematic 
elucidation  and  development  of  legal  principles ;  even  after  the 
major  part  of  all  law-making  has  fallen  to  the  deliberate  action 
of  legislatures,  given  liberal  commission  to  act  for  the  commu- 
nity, Custom  still  maintains  a  presiding  and  even  an  imperative 
part  in  legal  history.  It  is  Custom,  the  silent  and  unconcerted 
but  none  the  less  prevalent  movement,  that  is,  of  the  common 
thought  and  action  of  a  community,  which  recognizes  changes  of 
circumstance  which  judges  would  not,  without  its  sanction,  feel, 
or  be,  at  liberty  to  regard  in  the  application  of  old  enactments, 
and  which  legislators  have  failed  to  give  effect  to,  by  repeal  or 
new  enactment.  Laws  become  obsolete  because  silent  but  observ- 
ant and  imperative  Custom  makes  evident  the  deadness  of  their 
letter,  the  inapplicability  of  their  provisions.  Custom,  too, 
never  ceases  to  build  up  practices  legal  in  their  character  and  yet 
wholly  outside  formal  Law,  constructing  even,  in  its  action  on 
Congresses  and  Parliaments,  great  parts  of  great  constitutions. 
It  constantly  maintains  the  great  forces  of  precedent  and  opinion 
which  daily  work  their  will,  under  every  form  of  government, 
upon  both  the  contents  and  the  administration  of  Law.  Custom 
is  Habit  under  another  name ;  and  Habit  in  its  growth,  while 
it  continually  adjusts  itself  to  the  standard  fixed  in  formal 
Law,  also  slowly  compels  formal  Law  to  conform  to  its  abid- 
ing influences.  Habit  may  be  said  to  be  the  great  Law  within 
'  which  laws  spring  up.  Laws  can  extend  but  a  very  little  way 
beyond  its  limits.  They  may  help  it  to  gradual  extensions 
of  its  sphere  and  to  slow  modifications  of  its  practices,  but 
they  cannot  force  it  abruptly  or  disregard  it  at  all  with 
impunity. 

The  history  of  France  since  the  Revolution  affords  a  noteworthy 
example  of  these  principles  in  the  field  of  constitutional  law.  There 
we  have  witnessed  this  singular  and  instructive  spectacle  :  a  people 
made  democratic  in  thought  by  the  operation  of  a  speculative  political 
philosophy  has  adopted  constitution  after  constitution  created  in  the 


LAW;    ITS   NATURE   AND   DEVELOPMENT.  75 

exact  image  of  that  thought.  But  they  had,  to  begin  with,  absolutely  no 
democratic  habit,  —  no  democratic  custom.  Gradually  that  habit  has 
grown,  fostered  amidst  the  developments  of  local  self-direction ;  and 
the  democratic  thought  has  penetrated,  wearing  the  body  of  practice,  its 
only  vehicle  to  such  minds,  to  the  rural  populace.  Constitutions  and 
custom  have  thus  advanced  to  meet  one  another,  —  constitutions  compelled 
to  adopt  precedent  rather  than  doctrine  as  their  basis,  thought,  practical 
experience  rather  than  the  abstract  conceptions  of  philosophy  ;  and  habit 
constrained  to  receive  the  suggestions  of  written  law.  Now,  therefore,  in 
the  language  of  one  of  her  own  writers,  France  has  "  a  constitution  the 
most  summary  in  its  text"  (leaving  most  room,  that  is,  for  adjustments), 
"the  most  customary  in  its  application,  the  most  natural  outcome  of  our 
manners  and  of  the  force  of  circumstances"  that  she  has  yet  possessed.1 
Institutions  too  theoretical  in  their  basis  to  live  at  first,  have  nevertheless 
furnished  an  atmosphere  for  the  French  mind  and  habit :  that  atmosphere 
has  affected  the  life  of  France,  —  that  life  the  atmosphere.  The  result 
that  has  been  reached  is  normal  liberty,  political  vitality  and  vigor,  civil 
virility. 

Typical  Character  of  Roman  and  English  Law.  —  Roman 
law  and  English  law  are  peculiar  among  the  legal  systems  of 
western  Europe  for  the  freedom  and  individuality  of  their  devel- 
opment. Rome's  jus  civile  was,  indeed,  deeply  modified  through 
the  influence  of  the  jus  gentium;  it  received  its  philosophy  from 
Greece,  and  took  some  color  from  a  hundred  sources ;  and  English 
law,  despite  the  isolation  of  its  island  home,  received  its  jury 
system  and  many  another  suggestion  from  the  Continent,  and  has 
been  much,  even  if  unconsciously,  affected  in  its  development  by 
the  all-powerful  law  of  Rome.  But  English  and  Roman  law  alike 
have  been  much  less  touched  and  colored  than  other  systems  by 
outside  influences,  and  have  presented  to  the  world  what  may  be 
taken  as  a  picture  of  the  natural,  the  normal,  untrammelled  evo- 
lution of  law. 

The  Order  of  Legal  Development.  —  As  tested  by  the  his- 
tory of  these  systems,  the  order  in  which  I  have  placed  the 
Sources  of  Law  is  seen  to  be  by  no  means  a  fixed  order  of  histori- 
cal sequence.  Custom  is,  indeed,  the  earliest  fountain  of  Law, 
but  Religion  is  a  contemporary,  an  equally  prolific,  and  in  some 
stages  of  national  development  an  almost  identical  source;  Ad- 
judication comes  almost  as  early  as  authority  itself,  and  from  a 

1  Albert  Sorel,  Montesquieu  (Am.  trans.),  pp.  200,  201. 


76  LAW  :    ITS   NATURE   AND   DEVELOPMENT. 

very  antique  time  goes  hand  in  hand  with  Equity.  Only  Legis- 
lation, the  conscious  and  deliberate  origination  of  Law,  and  Sci- 
entific Discussion,  the  reasoned  development  of  its  principles, 
await  an  advanced  stage  of  growth  in  the  body  politic  to  assert 
their  influence  in  law-making.  In  E/ome,  Custom  was  hardly 
separable  from  Religion,  and  hid  the  knowledge  of  its  principles 
in  the  breasts  of  a  privileged  sacerdotal  class ;  among  the  English, 
on  the  contrary,  Custom  was  declared  in  folk-moot  by  the  voice 
of  the  people,  —  as  possibly  it  had  been  among  the  ancestors  of 
the  Romans.  In  both  Rome  and  England  there  was  added  to  the 
influence  of  the  magistrate  who  adopted  and  expanded  Custom 
in  his  judgments  the  influence  of  the  magistrate  (Praetor  or 
Chancellor)  who  gave  to  Law  the  flexible  principles  and  practices 
of  Equity.  And  in  both,  Legislation  eventually  became  the  only 
source  of  Law. 

'  But  in  Eome  Legislation  grew  up  under  circumstances 
entirely  Roman,  to  which  English  history  can  afford  no  parallel. 
Rome  gave  a  prominence  to  scientific  discussion  such  as  never 
gladdened  the  hearts  of  philosophical  lawyers  in  England.  The 
opinions  of  distinguished  lawyers  were  given  high,  almost  conclu- 
sive, authority  in  the  courts;  and  when  the  days  of  codification 
came,  great  texts  as  well  as  great  statutes  and  decrees  were 
embodied  in  the  codes  of  the  Empire.  The  legislation  of  the 
popular  assemblies,  which  Englishmen  might  very  easily  have 
recognized,  was  superseded  in  the  days  of  the  Empire  by  impe- 
rial edicts  and  imperial  codes  such  as  the  history  of  English  legis- 
lation nowhere  shows;  and  over  the  formulation  of  these  codes 
and  edicts  great  jurists  presided.  The  only  thing  in  English 
legal  practice  that  affords  a  parallel  to  the  influence  of  lawyers 
in  Rome  is  the  cumulative  authority  of  judicial  opinions.  That 
extraordinary  body  of  precedent,  which  has  become  as  much  a 
part  of  the  substance  of  English  law  as  are  the  statutes  of  the 
realm,  may  be  considered  the  contribution  of  the  legal  profession 
to  the  law  of  England. 

The  Forces  Operative  in  the  Development  of  Law.  —  The 
forces  that  create  and  develop  law  are  thus  seen  to  be  the  same 
as  those  which  are  operative  in  national  and  political  development. 


LAW:    ITS    XATUKK    AND    1  >KYKL<  H'MKNT.  77 

If  that  development  bring  forth  monarchical  forms  of  govern- 
ment, if  the  circumstances  amidst  which  a  people's  life  is  cast 
eradicate  habits  of  local  self-rule  and  establish  habits  of  submis- 
sion to  a  single  central  authority  set  over  a  compacted  state,  that 
central  authority  alone  will  formulate  and  give  voice  to  Law. 
If,  on  the  other  hand,  the  national  development  be  so  favorably 
cast  that  habits  of  self-reliance  and  self-rule  are  fostered  and  con- 
firmed among  the  people,  along  with  an  active  jealousy  of  any  too 
great  concentration  of  only  partially  responsible  power,  Law  will 
more  naturally  proceed,  through  one  instrumentality  or  another, 
from  out  the  nation :  vox  legis,  vox  populi.  But  in  the  one  case 
hardly  less  than  in  the  other  Law  will  express,  not  the  arbitrary, 
self-originative  will  of  the  man  or  body  of  men  by  whom  it  is  for- 
mulated, but  such  rules  as  the  body  of  the  nation  is  prepared  by 
reason  of  its  habits  and  fixed  preferences  to  accept.  The  func- 
tion of  the  framers  of  Law  is  a  function  of  interpretation,  of 
formulation  rather  than  of  origination :  no  step  that  they  can 
take  successfully  can  lie  far  apart  from  the  lines  along  which 
the  national  life  has  run.  Law  is  the  creation,  not  of  indi- 
viduals, but  of  the  special  needs,  the  special  opportunities,  the 
special  perils  or  misfortunes  of  communities.  No  '  law-maker ' 
may  force  upon  a  people  Law  which  has  not  in  some  sense  been 
suggested  to  him  by  the  circumstances  or  opinions  of  the  nation 
for  whom  he  acts.  Rulers,  in  all  states  alike,  exercise  the  power 
of  the  community,  but  cannot  exercise  any  other.  The  commu- 
nity may  supinely  acquiesce  in  the  power  arrogated  to  himself  by 
the  magistrate,  but  it  can  in  no  case  really  make  him  independent 
of  itself. 

Here  again  France  furnishes  our  best  illustration.  We  have 
a  vivid  confirmation  of  the  truths  stated  in  such  an  event  as 
the  establishment  of  the  Second  Empire.  The  French  people 
were  not  duped  by  Louis  Xapoleon.  The  facts  were  simply  these. 
They  were  keenly  conscious  that  they  were  making  a  failure  of 
the  self-government  whic  i  they  were  just  then  attempting;  they 
wanted  order  and  settled  rule  in  place  of  fear  of  revolution  and 
the  certainty  of  turbulent  politics ;  and  they  took  the  simplest, 
most  straightforward  and  evident  means  of  getting  what  they 


78  LAW  :    ITS    NATURE   AND    DEVELOPMENT. 

wanted.     The  laws  of  Napoleon  were  in  a  very  real  sense  their 
own  creation. 

The  Power  of  the  Community  must  be  behind  Law.  - 
The  law  of  some  particular  state  may  seem  to  be  the  command  of 
a  minority  only  of  those  who  compose  the  state :  it  may  even  in 
form  utter  only  the  will  of  a  single  despot ;  but  in  reality  laws 
which  issue  from  the  "arbitrary  or  despotic  authority  of  the  few 
who  occupy  the  central  seats  of  the  state  can  never  be  given  full 
effect  unless  in  one  form  or  another  the  power  of  the  community 
be  behind  them.  Whether  it  be  an  active  power  organized  to 
move  and  make  itself  prevalent  or  a  mere  inert  power  lying  pas- 
sive as  a  vast  immovable  buttress  to  the  great  structure  of  abso- 
lute authority,  the  power  of  the  community  must  support  law 
or  the  law  must  be  without  effect.  The  bayonets  of  a  minority 
cannot  long  successfully  seek  out  the  persistent  disobediences 
of  the  majority.  The  majority  must  acquiesce  or  the  law  must 
be  null. 

There  can  be  no  reasonable  doubt  that  the  power  of  Russia's 
Czar,  vast  and  arbitrary  as  it  seemed,  derived  its  strength  from 
the  Russian  people.  It  was  not  the  Czar's  personal  power ;  it 
was  his  power  as  head  of  the  national  church,  as  semi-sacred 
representative  of  the  race  and  its  historical  development  and 
organization.  Its  roots  run  deep  into  the  tenacious,  nourishing 
soil  of  immemorial  habit.  The  Czar  represented  a  history,  not  a 
caprice.  Temporary,  fleeting  despots,  like  the  first  Napoleon, 
lead  nations  by  the  ears,  playing  to  their  love  of  glory,  to  their 
sense  of  dignity  and  honor,  to  their  ardor  for  achievement  and 
their  desire  for  order. 

Both  a  Mirror  of  Conceptions  and  an  Active  Force. — 
Looked  at  from  an  abstract  point  of  view,  Law  is  a  body  of  prin- 
ciples, and  as  such  constitutes  a  mirror  of  the  prevalent  concep- 
tions as  to  ethical  standards  and  social  relationships  in  the 
communities  in  which  it  is  accepted.  But  Law  is  also  an  active 
force,  an  expression  of  will.  It  is  not  merely  a  body  of  opinion ; 
it  is  also  a  body  of  practical  rules  in  operation.  It  is  opera- 
tive in  two  ways.  It  exercises  both  an  ethical  and  a  physical 
compulsion. 

It  involves  (1),  an  Ought,  in  proportion  as  it  is  received  as 


LAW  I    ITS    NATURE    AND    DEVELOPMENT.  79 

just  or  expedient.  It  is  a  source  of  conviction  and  motive  in 
proportion  as  it  is  accepted  as  true.  This  ethical  force  is  its  prin- 
cipal force,  its  force  for  the  majority.  It  is  daily  influential  in 
moving  men  to  do  even  what  they  conceive  to  be  contrary  to  their 
individual  interests.  And  this  even  when  it  is  unjust  in  parts, 
provided  it  be  deemed  sound  and  just  as  a  whole.  (2)  For  the 
minority,  who  do  not  yield  to  its  moral  force  or  feel  its  moral 
compulsions,  it  involves  a  Must,  and  speaks  harshly  of  the  power 
of  the  state.  That  power  is  not  great  enough  to  venture  to  say 
'  You  must '  to  a  prevalent  majority  of  any  people.  In  cases  of 
conquest,  it  is  true,  like  that  of  the  Normans  in  England,  an 
actual  physical  compulsion  may  be  operative  for  long  periods  to- 
gether even  against  a  numerical  majority,  and  the  law  may  seem 
to  possess  an  ethical  force  only  for  the  minority.  But  generally 
the  compulsion  is  confined  to  the  field  of  public  law,  in  such 
cases ;  and  there  are  majorities  in  affairs  which  are  to  be 
reckoned,  not  by  number,  but  by  capacity. 

Roman  Law  an  Example.  —  The  law  of  Rome  affords 
in  this  respect  an  admirable  example  of  the  normal  charac- 
ter of  law.  It  was  the  fundamental  thought  of  Roman  Law 
that  it  was  the  will  of  the  Roman  people.  The  political  lib- 
erty of  the  Roman  consisted  in  his  membership  of  the  state 
and  his  consequent  participation,  either  direct  or  indirect,  in 
the  utterance  of  law.  As  an  individual  he  was  subordinated 
to  the  will  of  the  state  ;  but  his  own  will  as  a  free  burgess 
was  a  part  of  the  state's  will.  He  was  an  integral  part  of 
the  community,  his  own  power  found  its  realization  in  the 
absolute  potestas  et  majestas  populi.  This  giant  will  of  the 
people,  speaking  through  the  organs  of  the  state,  constituted  a 
very  absolute  power,  by  which  the  individual  was  completely 
dominated ;  but  individual  rights  were  recognized  in  the  equality 
of  the  law,  in  its  purpose  to  deal  equally  with  high  and  low,  with 
strong  and  weak ;  and  this  was  the  Roman  recognition  of  indi- 
vidual liberty. 

The  Power  of  Habit.  —  Legislators,  those  who  exercise 
the  authority  of  a  community,  build  upon  the  habit  of  their  so- 
called  *  subjects.'  If  they  be  of  the  same  race  and  sharers  of  the 


80  LAW  :    ITS   NATURE  AND   DEVELOPMENT. 

same  history  as  those  whom  they  rule,  their  accommodation  of 
their  acts  to  the  national  habit  will  be  in  large  part  unconscious  : 
for  that  habit  runs  in  their  own  veins  as  well  as  in  the  veins  of  the 
people.  If  they  be  invaders  or  usurpers,  they  avoid  crossing  the 
prejudices  or  the  long-abiding  practices  of  the  nation  out  of 
caution  or  prudence.  In  any  case  their  activity  skims  but  the 
surface,  avoids  the  sullen  depths  of  the  popular  life.  They  work 
arbitrary  decrees  upon  individuals,  but  they  are  balked  of  power 
to  turn  about  the  life  of  the  mass :  that  they  can  effect  only  by 
slow  and  insidious  measures  which  almost  insensibly  deflect  the 
habits  of  the  people  into  channels  which  lead  away  from  old  into 
new  and  different  methods  and  purposes.  The  habit  of  the 
nation  is  the  material  on  which  the  legislator  works ;  and  its 
qualities  constitute  the  limitations  of  his  power.  It  is  stubborn 
material,  and  dangerous.  If  he  venture  to  despise  it,  it  forces 
him  to  regard  and  humor  it ;  if  he  would  put  it  to  unaccustomed 
uses,  it  balks  him ;  if  he  seek  to  force  it,  it  will  explode  in  his 
hands  and  destroy  him.  The  authority  is  not  his,  but  only  the 
leadership. 

Law's  Utterance  of  National  Character.  —  There  is  no 
universal  law,  but  for  each  nation  a  law  of  its  own,  which  bears 
evident  marks  of  having  been  developed  along  with  the  national 
character,  which  mirrors  the  special  life  of  the  particular  people 
whose  political  and  social  judgments  it  embodies  (page  75). 
The  despot  may  be  grossly  arbitrary ;  he  may  violate  every  prin- 
ciple of  right  in  his  application  of  the  law  to  individuals  ;  he 
may  even  suspend  all  justice  in  individual  cases ;  but  the  law, 
the  principles  which  he  violates  or  follows  at  pleasure,  he 
takes  from  the  people  whom  he  governs,  extracts  from  their 
habit  and  history.  What  he  changes  is  the  application  merely, 
not  the  principles,  of  justice  ;  and  he  changes  that  application 
only  with  reference  to  a  comparatively  small  number  of  individ- 
uals whom  he  specially  picks  out  for  his  enmity  or  displeasure. 
He  cannot  violently  turn  about  the  normal  processes  of  the 
national  law. 

Germanic  Law.  —  We  have  in  Germanic  law  an  example 
of  the  influence  of  national  character  upon  legal  systems  as  con- 
spicuous as  that  afforded  by  Roman  law  itself,  and  the  example 


LAW  :    ITS    NATURE    AND    DEVELOPMENT.  81 

is  all  the  more  instructive  when  put  alongside  of  the  Roman 
because  of  the  sharpness  of  the  contrasts  between  Roman  and 
Germanic  legal  conceptions.  Although  so  like  the  Romans  in 
practical  political  sagacity  and  common-sense  legal  capacity,  the 
Germans  had  very  different  conceptions  as  to  the  basis  and 
nature  of  law.  Their  law  spoke  no  such  exaltation  of  the  public 
power,  and  consequently  no  such  intense  realization  of  unity. 
The  individual  German  was,  so  to  say,  given  play  outside  the 
law ;  his  rights  were  not  relative,  but  absolute,  self-centred. 
It  was  the  object  of  the  public  polity  rather  to  give  effect  to 
individual  worth  and  liberty  than  to  build  together  a  compact, 
dominant  community.  German  law,  therefore,  took  no  thought 
for  systematic  equality,  but  did  take  careful  thought  to  leave 
room  for  the  fullest  possible  assertion  of  that  individuality  which 
must  inevitably  issue  in  inequality.  It  was  a  flexible  frame- 
work for  the  play  of  individual  forces.  It  lacked  the  energy, 
the  united,  triumphant  strength  of  the  Roman  system ;  but  it 
contained  untold  treasures  of  variety  and  of  individual  achieve- 
ment. It,  no  less  than  Roman  law,  rested  broadly  upon  national 
character;  and  it  was  to  supply  in  general  European  history 
what  the  Roman  system  could  not  contribute.1 

Sovereignty:  who  gives  Law?  —  If,  then,  law  be  a 
product  of  national  character,  if  the  power  of  the  community 
must  be  behind  it  to  give  it  efficacy,  and  the  habit  of  the  com- 
munity in  it  to  give  it  reality,  where  is  the  seat  of  sovereignty  ? 
Whereabouts  and  in  whom  does  sovereignty  reside,  and  what 
is  Sovereignty  ?  These,  manifestly,  are  questions  of  great  scope 
and  complexity,  and  yet  questions  central  to  a  right  understand- 
ing of  the  nature  and  genesis  of  law.  It  will  be  best  to  approach 
our  answers  to  them  by  way  of  an  illustration. 

In  England,  sovereignty  is  said  to  rest  with  the  legis- 
lative power:  with  Parliament  acting  with  the  approval  of  the 
Crown,  or,  not  to  discard  an  honored  legal  fiction,  with  the  Crown 
acting  with  the  assent  of  Parliament.  Whatever  an  Act  of  Par- 
liament prescribes  is  law,  even  though  it  contravene  every  prin- 

1  What  is  here  said  of  Germanic  law  and  the  Germans  refers  to  the  primi- 
tive, not  to  the  modern  Germans.  The  present  German  laws  and  Germans 
are  all  that  those  here  spoken  of  were  not. 


82  LAW:     ITS    NATURE   AND    DEVELOPMENT. 

ciple,  constitutional  or  only  of  private  right,  recognized  before 
the  passage  of  the  Act  as  inviolable.  Such  is  the  theory.  The 
well-known  fact  is,  that  Parliament  dare  do  nothing  that  will 
even  seem  to  contravene  principles  held  to  be  sacred  in  the 
sphere  either  of  constitutional  privilege  or  private  right.  Should 
Parliament  violate  such  principles,  their  action  would  be  repu- 
diated by  the  nation,  their  will,  failing  to  become  indeed  law, 
would  pass  immediately  into  the  limbo  of  things  repealed ;  Par- 
liament itself  would  be  purged  of  its  offending  members.  Parlia- 
ment is  master,  can  utter  valid  commands,  only  so  far  as  it 
interprets,  or  at  least  does  not  cross,  the  wishes  of  the  people. 
Whether  or  not  it  be  possible  to  say  with  the  approval  of  those 
who  insist  upon  maintaining  the  rules  of  a  strict  abstract  logic 
that  the  sovereignty  of  Parliament  is  limited  de  jure,  that  is,  in 
law,  it  is  manifestly  the  main  significant  truth  of  the  case  that 
parliamentary  sovereignty  is  most  imperatively  limited  de  facto, 
in  fact.  Its  actual  power  is  not  a  whit  broader  for  having  a  free 
field  in  law,  so  long  as  the  field  in  which  it  really  moves  is  fenced 
high  about  by  firm  facts. 

Sovereignty,  therefore,  as  ideally  conceived  in  legal  theory, 
nowhere  actually  exists.  The  sovereignty  which  does  exist  is 
something  much  more  vital,  —  though,  like  most  living  things, 
much  less  easily  conceived.  It  is  the  will  of  an  organized 
independent  community,  whether  that  will  speak  in  acquiescence 
merely,  or  in  active  creation  of  the  forces  and  conditions  of  poli- 
tics. The  kings  or  parliaments  who  serve  as  its  vehicles  utter 
it,  but  they  do  not  possess  it.  Sovereignty  resides  in  the  com- 
munity ;  but  its  organs,  whether  those  organs  be  supreme  mag- 
istrates, busy  legislatures,  or  subtile  privileged  classes,  are  as 
various  as  the  conditions  of  historical  growth. 

Certain  Legal  Conceptions  Universal.  —  The  correspond- 
ence of  law  with  national  character,  its  basis  in  national  habit, 
does  not  deprive  it  of  all  universal  characteristics.  Many  com- 
mon features  it  does  wear  among  all  civilized  peoples.  As  the 
Romans  found  it  possible  to  put  together,  from  the  diversified 
systems  of  law  existing  among  the  subject  peoples  of  the  Mediter- 
ranean basin,  a  certain  number  of  general  maxims  of  justice  out 


LAW  :     ITS   NATURE   AND    DEVELOPMENT.  83 

of  which  to  construct  the  foundations  of  their  jus  gentium,  so  may 
jurists  to-day  discover  in  all  systems  of  law  alike  certain  common 
moral  judgments,  a  certain  evidence  of  unity  of  thought  regarding 
the  greater  principles  of  equity.  There  is  a  common  legal  con- 
science in  mankind. 

Thus,  for  example,  the  sacredness  of  human  life;  among 
all  Aryan  nations  at  least,  the  sanctity  of  the  nearer  family 
relationships ;  in  all  systems  at  all  developed,  the  plainer  prin- 
ciples of  'mine 'and  '  thine';  the  obligation  of  promises;  many 
obvious  duties  of  man  to  man  suggested  by  the  universal  moral 
consciousness  of  the  race,  receive  recognition  under  all  systems 
alike.  Sometimes  resemblances  between  systems  the  most  widely 
separated  in  time  and  space  run  even  into  ceremonial  details, 
such  as  the  emblematic  transfer  of  property,  and  into  many  items 
of  personal  right  and  obligation. 

Law  and  Ethics.  —  It  by  no  means  follows,  however, 
that  because  law  thus  embodies  the  moral  judgments  of  the 
race  on  many  points  of  personal  relation  and  individual  conduct, 
it  is  to  be  considered  a  sort  of  positive,  concrete  Ethics,  —  Ethics 
crystallized  into  definite  commands  towards  which  the  branch  of 
culture  which  we  call  '  Ethics '  stands  related  as  theory  to  prac- 
tice. Ethics  concerns  the  whole  walk  and  conversation  of  the 
individual ;  it  touches  the  rectitude  of  each  man's  life,  the  truth 
of  his  dealings  with  his  own  conscience,  the  whole  substance  of 
character  and  conduct,  righteousness  both  of  act  and  of  mental 
habit.  Law,  on  the  other  hand,  concerns  only  man's  life  in 
society.  It  not  only  confines  itself  to  controlling  the  outward 
acts  of  men ;  it  limits  itself  to  those  particular  acts  of  man  to 
man  which  can  be  regulated  by  the  public  authority,  which  it  has 
proved  practicable  to  regulate  in  accordance  with  uniform  rulee 
applicable  to  all  alike  and  in  an  equal  degree.  It  does  not  essay 
to  punish  untruthfulness  as  such,  it  only  annuls  contracts  ob- 
tained by  fraudulent  misrepresentation  and  makes  good  such 
pecuniary  damage  as  the  deceit  may  have  entailed.  It  does  not 
censure  ingratitude  or  any  of  the  subtler  forms  of  faithlessness, 
it  only  denounces  its  penalties  against  open  and  tangible  acts  of 
dishonesty.  It  does  not  assume  to  be  the  guardian  of  men's  char- 


84  LAW:     ITS    NATURE   AND    DEVELOPMENT. 

acters,  it  only  stands  with  a  whip  for  those  who  give  overt  proof 
of  bad  character  in  their  dealings  with  their  fellow-men.  Its  limi- 
tations are  thus  limitations  both  of  kind  and  of  degree.  It  ad- 
dresses itself  to  the  regulation  of  outward  conduct  only :  that  is 
its  limitation  of  kind  ;  and  it  regulates  outward  conduct  only  so 
far  as  workable  and  uniform  rules  can  be  found  for  its  regulation : 
that  is  its  limitation  of  degree. 

Mala  Prohibita.  —  Law  thus  plays  the  role  neither  of 
conscience  nor  of  Providence.  More  than  this,  it  follows  stand- 
ards of  policy  only,  not  absolute  standards  of  right  and  wrong. 
Many  things  that  are  wrong,  even  within  the  sphere  of  social 
conduct,  it  does  not  prohibit ;  many  things  not  wrong  in  them- 
selves it  does  prohibit.  It  thus  creates,  as  it  were,  a  new  class 
of  wrongs,  relative  to  itself  alone :  mala  prohibita,  things  wrong 
because  forbidden.  In  keeping  the  commands  of  the  state  re- 
garding things  fairly  to  be  called  morally  indifferent  in  them- 
selves men  are  guided  by  their  legal  conscience.  Society  rests 
upon  obedience  to  the  laws  :  laws  determine  the  rules  of  social 
convenience  as  well  as  of  social  right  and  wrong  ;  and  it  is  as 
necessary  for  the  perfecting  of  social  relationships  that  the  rules 
of  convenience  be  obeyed  as  it  is  that  obedience  be  rendered  to 
those  which  touch  more  vital  matters  of  conduct. 

Thus  it  cannot  be  said  to  be  inherently  wrong  for  a  man  to 
marry  his  deceased  wife's  sister  ;  but  if  the  laws,  seeking  what 
may  be  esteemed  to  be  a  purer  order  of  family  relationships, 
forbid  such  a  marriage,  it  becomes  malum  prohibitum :  it  is  wrong 
because  illegal. 

It  would  certainly  not  be  wrong  for  a  trustee  to  buy  the  trust 
estate  under  his  control  if  he  did  so  in  good  faith  and  on  terms 
manifestly  advantageous  to  the  persons  in  whose  interest  he  held 
it ;  but  it  is  contrary  to  wise  public  policy  that  such  purchases 
should  be  allowed,  because  a  trustee  would  have  too  many  oppor- 
tunities for  unfair  dealing  in  such  transactions.  The  law  will 
under  no  circumstances  hold  the  sale  of  a  trust  estate  to  the 
trustee  valid.  Such  purchases,  however  good  the  faith  in  which 
they  are  made,  are  mala  prohibita. 

Or  take,  as  another  example,  police   regulations   whose   only 


LAW  :  ITS  NATUKE  AND  DEVELOPMENT.       85 

object  is  to  serve  the  convenience  of  society  in  crowded  cities. 
A  street  parade,  with  bands  and  banners  and  men  in  uniform  is 
quite  harmless  and  is  immensely  pleasing  to  those  who  love  the 
glitter  of  epaulettes  and  brass  buttons  and  the  blare  of  trumpets  ; 
but  police  regulations  must  see  to  it  that  city  streets  are  kept 
clear  for  the  ordinary  daily  movements  of  the  busy  city  popula- 
tion, and  to  parade  without  license  is  malum  prohibitum. 

In  all  civilized  states  law  has  long  since  abandoned  attempts 
to  regulate  conscience  or  opinion  ;  it  would  find  it,  too,  both 
fruitless  and  unwise  to  essay  any  regulation  of  conduct,  however 
reprehensible  in  itself,  which  did  not  issue  in  definite  and 
tangible  acts  of  injury  to  others.  But  it  does  seek  to  command 
the  outward  conduct  of  men  in  their  palpable  dealings  with  each 
other  in  society.  Law  is  the  mirror  of  active  political  life.  It 
may  be  and  is  instructed  by  the  ethical  judgments  of  the  com- 
munity, but  its  own  province  is  not  distinctively  ethical ;  it  may 
regard  religious  principle,  but  it  is  not  a  code  of  religion.  Ethics 
has  been  called  the  science  of  the  well-being  of  man,  law  the 
science  of  his  right  civil  conduct.  Ethics  concerns  the  develop- 
ment of  character ;  religion,  the  development  of  man's  relation 
with  God ;  law,  the  development  of  men's  relations  to  each  other 
in  society.  Ethics,  says  Mr.  Sidgwick,  "is  connected  with 
politics  so  far  as  the  well-being  of  any  individual  man  is  bound 
up  with  the  well-being  of  his  society." 

International  Law.  —  International  Law  may  be  described  as 
law  in  an  incomplete  state.  It  is  law  without  a  forceful  sanction 
such  as  exists  for  the  ordinary  law  of  the  land.  There  is  no 
earthly  power  to  which  all  nations  are  subject ;  there  is  no  power, 
therefore,  above  the  nations  to  enforce  obedience  to  rules  of  con- 
duct as  between  them,  yet  International  Law  is  not  lacking  in 
sanction  altogether  ;  it  rests  upon  those  principles  of  right  action, 
of  justice,  and  of  consideration  which  have  so  universal  an 
acceptance  in  the  moral  judgment  of  men  that  they  have  been 
styled  the  Laws  of  Nature.  Back  of  it  in  the  first  instance  is 
the  common  public  opinion  of  the  world.  When  this  public 
opinion  is  flouted,  and  the  principles  and  practices  of  inter- 
national Law  are  disregarded,  then  the  physical  force  of  in- 


86       LAW  :  ITS  NATURE  AND  DEVELOPMENT. 

dividual  states  or  groups  of  states  may  be  brought  to  bear  upon 
the  law-breaker.  International  Law  is  the  law  of  the  inter- 
national community  of  states  ;  its  principles  are  those  upon  which 
the  successful  life  of  that  community  depends.  The  society  of 
states  is  not  yet  fully  organized  and  International  Law  is  incom- 
plete just  to  the  extent  that  this  society  lacks  organization  ;  its 
courts,  its  judges,  its  legislatures  are  rudimentary  and  are  want- 
ing as  yet  in  that  definiteness  of  constitution  and  authority  which 
we  find  in  individual  states. 

Early  writers  like  Grotius  and  Vattel  embodied  it  in  distinct 
statements  of  what  they  conceived  to  be  the  almost  self-evident 
principles  of  the  Law  of  Nature.  In  process  of  time,  the  practice 
of  nations  has  been  recorded  in  state  papers  and  in  learned 
treatises  by  hosts  of  scholars ;  principles  of  international  action 
have  been  agreed  to  in  treaties  by  which  states  acting  in  pairs  or 
in  groups  have  agreed  to  be  bound  in  their  relations  with  each 
other,  and  both  practice  and  agreements  have  found  their  way 
into  the  statutes  or  established  judicial  precedents  of  enlightened 
individual  states.  More  and  more  international  conventions  have 
come  to  recognize  certain  elements  of  right,  of  equity  and  comity 
as  settled,  as  always  to  be  accepted  in  transactions  between 
states.  The  practice  of  concerted  action  by  the  states  of  the 
world  in  formulating  International  Law  is  best  exemplified  in  the 
First  and  Second  Hague  Conferences  of  1899  and  1907,  where 
much  of  the  practice  of  International  Law  was  formulated  and 
definite  rules  accepted  by  the  great  body  of  states  as  binding 
upon  them. 

The  formation  of  a  "  League  of  Nations  "  to  bring  pressure  to 
bear  upon  a  state  unmindful  of  its  international  obligations  will 
go  far  towards  supplying  the  sanction  of  regulated  force  which 
International  Law  has  hitherto  lacked. 

These  rules  concern  the  conduct  of  war,  diplomatic  inter- 
course, the  rights  of  citizens  of  one  country  living  under  the 
dominion  of  another,  jurisdiction  at  sea,  the  rights  and  duties  of 
neutrals,  etc.  Extradition  principles  are  settled  almost  always 
by  specific  agreement  between  country  and  country,  as  are  also 
commercial  arrangements,  fishing  rights,  and  all  similar  matters 


LAW  :     ITS   NATURE   AND   DEVELOPMENT.  87 

not  of  universal  bearing.  But  even  in  such  matters  example 
added  to  example  is  turning  nations  in  the  direction  of  uniform 
principles  ;  such,  for  instance,  as  that  political  offences  shall  not 
be  included  among  extraditable  crimes,  unless  they  involve 
ordinary  crimes  of  a  very  heinous  nature,  such  as  murder. 

Laws  of  Nature  and  Laws  of  the  State. — The  analogy 
between  political  laws,  the  laws  which  speak  the  will  of  the  state, 
and  natural  laws,  the  laws  which  express  the  orderly  succession 
of  events  in  nature,  has  often  been  dwelt  upon,  and  is  not  without 
instructive  significance.  In  the  one  set  of  laws  as  in  the  other, 
there  is,  it  would  seem,  a  uniform  prescription  as  to  the  opera- 
tion of  the  forces  that  make  for  life.  The  analogy  is  most  in- 
structive, however,  where  it  fails:  it  is  more  instructive,  that  is, 
to  note  the  contrasts  between  the  laws  of  nature  and  laws  of  the 
state  than  to  note  such  likeness  as  exists  between  them.  The 
contrasts  rather  than  the  resemblances  serve  to  make  evident  the 
real  nature  of  political  regulation.  "  Whenever  we  have  made 
out  by  careful  and  repeated  observation,"  says  Professor  Huxley, 
"that  something  is  always  the  cause  of  a  certain  effect,  or  that 
certain  events  always  take  place  in  the  same  order,  we  speak  of 
the  truth  thus  discovered  as  a  law  of  nature.  Thus  it  is  a  law 
of  nature  that  anything  heavy  falls  to  the  ground  if  it  is  unsup- 
ported. .  .  .  But  the  laws  of  nature  are  not  the  causes  of  the 
order  of  nature,  but  only  our  way  of  stating  as  much  as  we  have 
made  out  of  that  order.  Stones  do  not  fall  to  the  ground  in  con- 
sequence of  the  law  just  stated,  as  people  sometimes  carelessly 
say ;  but  the  law  is  a  way  of  asserting  that  which  invariably  hap- 
pens when  heavy  bodies  at  the  surface  of  the  earth,  stones  among 
the  rest,  are  free  to  move." 

Whatever  analogies  may  exist  between  such  generalized  state- 
ments of  physical  fact  and  the  rules  in  accordance  with  which 
men  are  constrained  to  act  in  organized  civil  society  it  may  be 
profitable  for  the  curious  carefully  to  inquire  into.  What  it  is 
most  profitable  for  the  student  of  politics  to  observe  is  the 
wide  difference  between  the  two,  which  Professor  Huxley  very 
admirably  states  as  follows :  "  Human  law  consists  of  com- 
mands addressed  to  voluntary  agents,  which  they  may  obey  or 


88  LAW  :     ITS    NATURE    AND    DEVELOPMENT. 

disobey ;  and  the  law  is  not  rendered  null  and  void  by  being 
broken.  Natural  laws,  on  the  other  hand,  are  not  commands, 
but  assertions  respecting  the  invariable  order  of  nature  ;  and  they 
remain  law  only  so  long  as  they  can  be  shown  to  express  that 
order.  To  speak  of  the  violation  or  suspension  of  a  law  of  nature 
is  an  absurdity.  All  that  the  phrase  can  really  mean  is  that, 
under  certain  circumstances,  the  assertion  contained  in  the  law  is 
not  true;  and  the  just  conclusion  is,  not  that  the  order  of  nature 
is  interrupted,  but  that  we  have  made  a  mistake  in  stating  that 
order.  A  true  natural  law  is  a  universal  rule,  and,  as  such,  ad- 
mits of  no  exception."1  In  brief,  human  choice  enters  into  the 
law  of  the  state,  whereas  from  natural  law  that  choice  is  alto- 
gether excluded  :  it  is  dominated  by  fixed  necessity.  Human 
choice,  indeed,  enters  every  part  of  political  law  to  modify  it.  It 
is  the  element  of  change ;  and  it  has  given  to  the  growth  of  law 
a  variety,  a  variability,  and  an  irregularity  which  no  other  power 
could  have  imparted. 

Limitations  of  Political  Law.  —  We  have  thus  laid  bare 
to  our  view  some  of  the  most  instructive  characteristics  of  politi- 
cal law.  The  laws  of  nature  formulate  effects  invariably  pro- 
duced by  forces  of  course  adequate  to  produce  them;  but  behind 
political  laws  there  is  not  always  a  force  adequate  to  produce  the 
effects  which  they  are  designed  to  produce.  The  force,  the  sanc- 
tion, as  jurists  say,  which  lies  behind  the  laws  of  the  state  is  the 
organized  armed  power  of  the  community :  compulsion  raises  its 
arm  against  the  man  who  refuses  to  obey  (pages  26,  78).  But 
the  public  power  may  sleep,  may  be  inattentive  to  breaches  of 
law,  may  suffer  itself  to  be  bribed,  may  be  outwitted  or  thwarted  : 
laws  are  not  always  '  enforced.'  This  element  of  weakness  it  is 
which  opens  up  to  us  one  aspect  at  least  of  the  nature  of  Law. 
Law  is  no  more  efficient  than  the  state  whose  will  it  utters.  The 
law  of  Turkey  shares  all  the  imperfections  of  the  Turkish  power ; 
the  laws  of  England  bespeak  in  their  enforcement  the  efficacy  of 
English  government.  Good  laws  are  of  no  avail  under  a  bad  gov- 

1  These  passages   are  taken  from  Professor  Huxley's  Science  Primer, 
Introductory. 


LAW  :  ITS  NATURE  AND  DEVELOPMENT.        89 

ernment ;  a  weak,  decadent  state  may  speak  the  highest  purposes 
in  its  statutes  and  yet  do  the  worst  things  in  its  actual  admin- 
istration. Commonly,  however,  law  embodies  the  real  purposes 
of  the  state,  and  its  enforcement  is  a  matter  of  administrative 
capacity  or  of  concerted  power  simply. 

Public  Law.  —  The  two  great  divisions  under  which  law 
may  best  be  studied  are  these :  (1)  Public  Law,  (2)  Private  Law. 
Public  law  is  that  which  immediately  concerns  the  existence, 
the  structure,  the  functions,  and  the  methods  of  the  state.  Taken 
in  its  full  scope,  it  includes  not  only  what  we  familiarly  know 
as  constitutional  law,  but  also  what  is  known  as  administrative 
law,  as  well  as  all  civil  procedure  in  the  courts  and  all  criminal 
law.  In  brief,  it  is  that  portion  of  law  which  determines  a 
state's  own  character  and  its  relations  to  its  citizens. 

Private  Law.  —  Private  law,  on  the  other  hand,  is  that 
portion  of  positive  law  which  secures  to  the  citizen  his  rights  as 
against  the  other  citizens  of  the  state.  It  seeks  to  effect  justice 
between  individual  and  individual ;  its  sphere  is  the  sphere  of 
individual  right  and  duty. 

It  is  to  the  Romans  that  we  are  indebted  for  a  first  partial 
recognition  of  this  important  division  in  the  province  of  Law, 
though  later  times  have  given  a  different  basis  to  this  distinction. 
I  say  'indebted'  because  the  distinction  between  public  and 
private  law  has  the  most  immediate  connections  with  individual 
liberty.  Without  it,  we  have  the  state  of  affairs  that  existed  in 
Greece,  where  there  was  no  sphere  which  was  not  the  state's  ; 
and  where  the  sphere  of  the  state's  relations  to  the  individual 
was  as  wide  as  the  sphere  of  the  law  itself.  Individual  liberty 
can  exist  only  where  it  is  recognized  that  there  are  rights  which 
the  state  does  not  create,  but  only  secures. 

Jurisprudence.  —  Jurisprudence  is  a  term  of  much  lati- 
tude, but  when  used  strictly  must  be  taken  to  mean  the  Science 
of  Law.  The  science  of  law  is  complete  only  when  it  has  laid 
bare  both  the  nature  and  the  genesis  of  law :  the  nature  of  law 
must  be  obscure  until  its  genesis  and  the  genesis  of  the  con- 
ceptions upon  which  it  is  based  have  been  explored ;  and  that 
genesis  is  a  matter,  not  of  logical  analysis,  but  of  history.  Many 


90  LAW:    ITS   NATURE   AND   DEVELOPMENT. 

writers  upon  jurisprudence,  therefore,  have  insisted  upon  the 
historical  method  of  study  as  the  only  proper  method.  They 
have  sought  in  the  history  of  society  and  of  institutions  to  dis- 
cover the  birth  and  trace  the  development  of  jural  conceptions, 
the  growths  of  practice  which  have  expanded  into  the  law  of 
property  or  of  torts,  the  influences  which  have  contributed  to  the 
orderly  regulation  of  man's  conduct  in  society. 

In  the  hands  of  another  school  of  writers,  however,  jurispru- 
dence has  been  narrowed  to  the  dimensions  of  a  science  of  law 
in  its  modern  aspects  only.  They  seek  to  discover,  by  an  analy- 
sis of  law  in  its  present  full  development,  the  rights  which 
habitually  receive  legal  recognition  and  the  methods  by  which 
states  secure  to  their  citizens  their  rights,  and  enforce  upon  them 
their  duties,  by  positive  rules  backed  by  the  abundant  sanction 
of  the  public  power.  In  their  view,  not  only  is  the  history  of 
law  not  jurisprudence,  but,  except  to  a  very  limited  extent,  it  is 
not  even  the  material  of  jurisprudence.  Its  material  is  law  as  it 
at  present  exists.  The  history  of  that  law  is  only  a  convenient 
light  in  which  the  real  content  and  purpose  of  existing  law  may 
be  made  plainer  to  the  analyst.  The  conclusions  of  these  writers 
are  subject  to  an  evident  limitation,  therefore.  Their  analysis  of 
law,  being  based  upon  existing  legal  systems  alone  and  taking 
the  fully  developed  law  for  granted,  can  be  applied  to  law  in  the 
earlier  stages  of  society  only  by  careful  modification,  only  by  a 
more  or  less  subtle  and  ingenious  accommodation  of  the  meaning 
of  its  terms. 

Historical  jurisprudence  alone,  —  a  science  of  law,  that  is, 
constructed  by  means  of  the  historical  analysis  of  law  and  always 
squaring  its  conclusions  with  the  history  of  society,  can  serve 
the  objects  of  the  student  of  politics.  The  processes  of  analytical 
jurisprudence,  however,  having  been  conducted  by  minds  of  the 
greatest  subtlety  and  acuteness,  serve  a  very  useful  purpose  in 
supplying  a  logical  structure  of  thought  touching  full-grown 
systems  of  law. 

The  Analytical  Account  of  Law.  —  In  the  thought  of  the 
analytical  school  every  law  is  a  command,  "  an  order  issued  by  a 
superior  to  an  inferior."  "  Every  positive  law  is  '  set  by  a  sover- 


LAW:    ITS   NATURE   AND   DEVELOPMENT.  91 

eign  person,  or  sovereign  body  of  persons,  to  a  member  or  mem- 
bers of  the  independent  political  society  wherein  that  person  or 
body  of  persons  is  sovereign  or  superior/  "  In  its  terms,  mani- 
festly, such  an  analysis  applies  only  to  times  when  the  will  of 
the  state  is  always  spoken  by  a  definite  authority ;  not  with  the 
voice  of  custom,  which  proceeds  no  one  knows  whence ;  not  with 
the  voice  of  religion,  which  speaks  to  the  conscience  as  well  as 
to  the  outward  life,  and  whose  sanctions  are  derived  from  the 
unseen  power  of  a  supernatural  being ;  nor  yet  with  the  voice  of 
scientific  discussion,  whose  authors  have  no  authority  except  that 
of  clear  reason ;  but  with  the  distinct  accents  of  command,  with 
the  voice  of  the  judge  and  the  legislator. 

The  Analytical  Account  of  Sovereignty.  —  The  analytical 
account  of  sovereignty  is  equally  clear-cut  and  positive.  Laws, 
"being  commands,  emanate  from  a  determinate  source,"  from  a 
sovereign  authority ;  and  analytical  jurisprudence  is  very  strict 
and  formal  in  its  definition  of  sovereignty.  A  sovereign  "  is  a 
determinate  person,  or  body  of  persons,  to  whom,  the  bulk  of  the 
members  of  an  organized  community  are  in  the  habit  of  render- 
ing obedience  and  who  are  themselves  not  in  the  habit  of  render- 
ing obedience  to  any  human  superior."  It  follows,  of  course,  that 
no  community  which  is  not  independent  can  have  a  law  of  its 
own.  The  law  of  the  more  fully  developed  English  colonies,  for 
example,  though  it  is  made  by  the  enactment  of  their  own  parlia- 
ments, is  not  law  by  virtue  of  such  enactment,  because  those 
parliaments  are  in  the  habit  of  being  obedient  to  the  authorities 
in  London  and  are  not  themselves  sovereign.  The  sovereignty 
which  lies  back  of  all  law  in  the  colonies  is  said  to  be  the  sov- 
ereignty of  the  parliament  of  England. 

It  would  seem  to  follow  that  our  own  federal  authorities  are 
sovereign.  They  are  a  determinate  body  of  persons  to  whom  the 
bulk  of  the  nation  is  habitually  obedient  and  who  are  themselves 
obedient  to  no  human  superior.  But  then  what  of  the  authority 
of  the  states  in  that  great  sphere  of  action  which  is  altogether 
and  beyond  dispute  their  own,  which  the  federal  authorities  do 
not  and  cannot  enter,  within  which  their  own  people  are  habit- 
ually obedient  to  them,  and  in  which  they  are  not  subject  to  any 


92  LAW:    ITS   NATURE   AND   DEVELOPMENT. 

earthly  superior  ?  It  has  been  the  habit  of  all  our  earlier  writers 
and  statesmen  to  say  that  with  us  sovereignty  is  divided.  But 
the  abstract  sovereignty  of  which  the  legal  analyst  speaks  is  held 
to  be  indivisible :  it  must  be  whole.  Analysis,  therefore,  is 
driven  to  say  that  with  us  sovereignty  rests  in  its  entirety  with 
that  not  very  determinate  body  of  persons,  the  people  of  the 
United  States,  the  powers  of  sovereignty  resting  with  the  state 
and  federal  authorities  by  delegation  from  the  people. 

The  difficulty  of  applying  the  analytical  account  of  sovereignty 
to  our  own  law  is  in  part  avoided  if  law  be  defined  as  "  the  com- 
mand of  an  authorized  public  organ,  acting  within  the  sphere  of 
its  competence.  What  organs  are  authorized,  and  what  is  the 
sphere  of  their  competence,  is  of  course  determined  by  the  or- 
ganic law  of  the  state  ;  and  this  law  is  the  direct  command  of  the 
sovereign."  *  The  only  difficulty  left  by  this  solution  is  that  of 
making  room  in  our  system  for  both  a  sovereign  people  of  the 
single  state  and  a  sovereign  people  of  the  Union. 

Summary.  —  Spoken  first  in  the  slow  and  general  voice 
of  custom,  Law  speaks  at  last  in  the  clear,  the  multifarious,  the 
active  tongues  of  legislation.  It  grows  with  the  growth  of  the 
community.  It  cannot  outrun  the  conscience  of  the  community 
and  be  real,  it  cannot  outlast  its  judgments  and  retain  its  force. 
It  mirrors  social  advance.  If  it  anticipate  the  development  of 
the  public  thought,  it  must  wait  until  the  common  judgment  and 
conscience  grow  up  to  its  standards  before  it  can  have  life  ;  if  it 
lag  behind  the  common  judgment  and  conscience,  it  must  become 
obsolete,  and  will  come  to  be  more  honored  in  the  breach  than  in 
the  observance. 

1  This  definition  I  have  taken  the  liberty  of  extracting  from  some  very 
valuable  notes  on  this  chapter  kindly  furnished  me  by  Professor  Monroe 
Smith,  who  upon  this  subject  speaks  authoritatively. 


LAW:     ITS   NATURE   AND   DEVELOPMENT.  93 

SEVERAL  REPRESENTATIVE  AUTHORITIES. 

.1  uxtin,  John,  Lectures  on  Jurisprudence,  the   Philosophy  of   Positive 

Law,  2  vols. 

Gray,  J.  C.,  The  Nature  and  Sources  of  the  Law.     N.  Y.,  1909. 
Heron,  D.  C.,  Introduction  to  the  History  of  Jurisprudence.     London, 

1880. 

II oil n ml,  T.  E.,  Elements  of  Jurisprudence,     llth  ed.     N.  Y.,  1910. 
Ihering,  v.,  Geist  des  Romischen  Rechts.     3  vols.,  Leipzig. 
Jtllim-k;  (Jeorg,  Gesetz  und  Verordnung.     Freiburg  in  B.,  1887;    Das 

Recht  des  Modernen  Staates.     2d  ed.     Berlin,  1905. 
Maine,   Sir   H.  S.,  Ancient   Law,   and   Early   History  of   Institutions, 

Lectures  XII.,  XIII. 

Markby,  Sir  Wm.,  Elements  of  Law.     Oxford  (Clarendon  Press),  1889- 
Modern  Legal  Philosophy  Series,  Vols.  1-2,  Boston. 
Pollock,  Sir  Frederick,  A  First  Book  of  Jurisprudence.      London  and 

N.  Y.,  1896. 

Robertson,  E.,  Article  *  Law,'  Encyclopaedia  Britannica,  9th  ed. 
Salmond,  J.  W.,  Jurisprudence.     London,  1902. 
Taylor,  Hannis,  The  Science  of  Jurisprudence.     N.  Y.,  1908. 
Willoughby,  W.  W.,  The  Nature  of  the  State.     N.  Y.,  1896. 


VI. 


POLITY  AND   GOVERNMENT   DURING 
THE   MIDDLE   AGES. 


Contact  of  the  Teutonic  Tribes  with  Rome.  —  The  Teutonic 
tribes  which,  in  the  fifth  and  following  centuries,  threw  them- 
selves into  the  Western  Roman  Empire  to  possess  it  were  not  all 
of  them  strangers  to  the  polity  which  they  overset.  The  Romans 
had  often  invaded  Germany,  and,  although  as  often  thrust  out, 
had  established  a  supremacy  over  the  minds  at  least,  if  not  over 
the  liberties,  of  the  Germans.  Those  tribes  which  had  lived 
nearest  the  Rhine  and  the  Danube,  moreover,  had  long  been  in 
more  or  less  constant  contact  with  the  masters  of  the  Mediter- 
ranean and  the  western  world,  and  had,  of  course,  been  deeply 
affected  by  the  example  of  Roman  civilization.  Teutons  had, 
besides,  entered  and,  so  to  say,  espoused  the  Roman  world  in 
great  numbers,  in  search  of  individual  adventure  or  advantage, 
long  before  the  advent  of  the  barbarians  as  armed  and  emigrant 
hosts.  Rome  had  drawn  some  of  her  finest  legions  from  these 
races  which  she  could  not  subdue.  Her  armies  were  in  the  later 
days  of  the  Empire  full  of  stalwart,  fair-haired  Germans.  Even 
her  greater  officers  and  officials  were  oftentimes  of  that  blood. 

Primitive  Teutonic  Institutions.  —  When  Franks  and  Goths 
and  Burgundians  moved  as  militant  races  to  the  supplanting  of 
Roman  dominion,  they,  nevertheless,  took  with  them  into  western 
Europe,  torn  as  it  was  by  Roman  dissensions  and  sapped  by 
Roman  decay,  an  individuality  of  their  own.  They  had  their 
own  contribution  to  make  to  the  history  of  institutions.  They 
had  lived  under  a  system  of  government  combining,  though  in 

94 


POLITY   DURING   THE   MIDDLE   AGES.  95 

somewhat  crude  forms,  tribal  unity  and  individual  independence. 
Amongst  them,  as  amongst  other  Aryan  peoples,  kinship  consti- 
tuted the  basis  of  association  and  the  primal  sanction  of  authority; 
and  the  family  was  the  unit  of  government.  Kinsmen,  fellow- 
tribesmen,  were  grouped  in  villages,  and  each  village  maintained 
without  question  its  privileges  of  self-government,  legislating 
upon  its  common  affairs  and  administering  its  common  property 
in  village  meeting.  Its  lands  were  the  property,  not  of  indi- 
viduals, but  of  the  community ;  but  they  were  allotted  in  separate 
parcels  to  the  freemen  of  the  community,  upon  would-be  equit- 
able principles,  to  be  cultivated  for  private,  not  for  communal, 
profit.  Chiefs  there  were  who  exercised  magisterial  powers,  but 
these  chiefs  were  elected  in  village  meeting.  They  did  not  deter- 
mine the  weightier  questions  of  custom,  in  the  administration  of 
justice:  that  was  the  province  of  the  village  meeting  itself;  and 
such  judicial  authority  as  they  did  exercise  was  shared  by 
'assessors '  chosen  from  the  whole  body  of  their  free  fellow- 
villagers. 

Free,  Unf ree,  and  Noble.  —  Not  all  their  fellow-villagers 
were  free.  There  were  some  who  were  excluded  from  political 
privilege  and  who  held  their  lands  only  as  serfs  of  the  freemen 
of  the  community;  and  there  were  others,  lower  still  in  rank, 
who  were  simple  slaves.  There  were,  again,  on  the  other 
hand,  some  who  were  more  than  free,  who,  for  one  reason  or 
another,  had  risen  to  a  recognized  nobility  of  station,  to  a  posi- 
tion of  esteem,  and  to  an  estate  of  wealth  above  those  of  the  rest 
of  the  community.  But  nobility  did  not  carry  with  it  exceptional 
political  privilege :  it  only  assured  a  consideration  which  put  its 
possessor  in  the  way  of  winning  the  greater  preferments  of  office 
in  the  gift  of  the  village  meeting.  The  power  of  the  noble  de- 
pended upon  the  franchises  of  his  community  rather  than  upon 
any  virtue  in  his  own  blood. 

Intercommunal  Government.  —  It  was  not  often  that  a 
village  stood  apart  in  entire  dissociation  from  all  similar  tribal 
or  family  centres ;  but  when  it  did,  the  powers  of  its  moot  (meet- 
ing) extended  beyond  the  choice  of  magistrates,  the  management 
of  the  communal  property,  and  the  administration  of  communal 
justice.  It  also  declared  war  and  appointed  leaders  of  the  com- 


96  POLITY    AND   GOVERNMENT 

munal  'host. '  Commonly,  however,  these  greater  matters  of  wai 
and  of  ' foreign  relations '  were  determined  by  assemblies  repre- 
senting more  than  one  village.  Communities  sent  out  offshoots 
which  remained  connected  with  them  by  federal  bonds  j  or  inde- 
pendent communities  drew  together  into  leagues ;  and  it  was  the 
grand  folk-moot  of  the  confederated  communities  which  sum- 
moned the  'host'  and  elected  leaders, — which  sometimes  even 
chose  the  chiefs  who  were  to  preside  over  the  administration  of 
the  several  villages. 

Military  Leadership :  the  Comitatus.  —  The  leaders  selected 
to  head  the  'host '.  were  generally  men  of  tried  powers  who  could 
inspire  confidence  and  kindle  emulation  in  their  followers;  and 
such  men,  though  in  all  cases  chosen  to  official  leadership  only 
for  a  single  campaign,  never  even  in  times  of  peace  ceased  to  be, 
potentially  at  least,  the  heads  of  military  enterprise  and  daring 
adventure.  Not  uncommonly  they  would  break  the  monotony  of 
peace  and  dull  inactivity  by  gathering  about  them  a  band  of 
volunteers  and  setting  forth,  spite  of  the  peace  enjoyed  by  their 
tribe,  to  make  fighting  or  find  plunder  somewhere  for  their  own 
sakes.  About  men  of  this  stamp  there  gathered  generally  all 
the  young  blades  of  the  tribe  who  thirsted  for  excitement  or 
adventure,  or  who  aspired  to  gain  proficiency  in  arms.  These 
became  the  military  household,  the  comitatuSj  of  their  chosen 
chieftain,  his  permanent,  inseparable  retinue,  bound  to  him  by 
the  closest  ties  of  personal  allegiance,  sitting  always  at  his  table, 
and  at  once  defending  his  person  and  emulating  his  prowess  in 
battle ;  a  band  who  looked  to  him  for  their  sustenance,  their  mili- 
tary equipment,  and  their  rewards  for  valor,  but  who  rendered 
him  in  return  a  gallant  service  which  added  much  to  his  social 
consideration  and  gave  him  rank  among  the  most  powerful  of  his 
fellow-tribesmen. 

Contrasts  between  the  Teutonic  System  and  the  Roman.  — 
These  features  of  tribal  confederation  and  personal  supremacy, 
though  suggestive  at  many  points  of  the  primitive  Koman  state, 
were  in  strong  contrast  with  the  Eoman  polity  as  it  existed  at 
the  time  of  the  invasions.  They  were  not  only  rude  and  primitive 
and  characteristic  every  way  of  a  very  much  less  advanced  stage 
of  civilization,  but  they  also  contained  certain  principles  which 


DURING   THE   MIDDLE   AGES.  97 

were  in  radical  contradiction  to  conceptions  obviously  funda- 
mental to  Roman  state  life. 

Koman  Allegiance  to  the  State.  —  The  central  contrast 
between  the  two  systems  may  be  roughly  summed  up  in  the 
statement  that  the  Teutonic  was  essentially  personal,  the  Roman 
essentially  impersonal.  Neither  the  Roman  soldier  nor  the 
Roman  citizen  knew  anything  of  the  personal  allegiance  which 
was  the  chief  amalgam  of  primitive  German  politics.  His  sub- 
ordination was  to  the  state,  and  that  subordination  was  so  com- 
plete that  he  was  practically  merged  in  the  state,  possessing 
no  rights  but  those  of  a  child  of  the  body  politic.  His  obli- 
gation to  obey  the  magistrate  in  the  city  or  his  commander  in 
the  field  lasted  only  so  long  as  the  magistrate's  or  command- 
er's commission  lasted.  Allegiance  had  no  connection  with 
the  magistrate  or  the  commander  as  a  person:  magistrate  and 
commander  claimed  allegiance  only  as  representatives  of  the 
state,  its  temporary  embodiment.  To  them  as  the  state,  the  citi- 
zen or  soldier  owed  the  yielding  of  everything,  even  of  life  itself : 
for  as  against  the  state  the  Roman  had  no  private  rights.  While 
he  held  office,  therefore,  and  shared  the  imperium,  magistrate  or 
commander  was  omnipotent ;  his  official  conduct  could  be  called 
in  question  only  after  his  term  of  office  was  at  an  end  and  he  had 
ceased  to  be  the  state's  self.  Of  course  much  decay  had  come 
into  the  heart  of  such  principles  ere  the  Empire  was  forced  to 
break  before  the  barbarian ;  but  they  never  ceased  to  be  central 
to  Roman  political  conception. 

Teutonic  Personal  Allegiance.  —  With  the  Teutons,  on 
the  contrary,  political  association  manifested  an  irresistible  ten- 
dency towards  just  the  opposite  principles.  When  they  came  to 
their  final  triumph  over  the  Empire  they  came  ranked  and  asso- 
ciated upon  grounds  of  personal  allegiance.  In  their  old  life 
in  Germany,  as  we  have  seen  above,  their  relations  to  their 
commanders  did  not  cease  at  the  close  of  a  war  sanctioned  by  the 
community,  though  the  commission  of  their  leaders  did  expire 
then.  Many,  —  and  those  the  bravest  and  best,  —  remained  mem- 
bers of  their  leaders'  comitatus,  bound  to  him  by  no  public  com- 
mand or  sanction  at  all,  but  only  by  his  personal  supremacy  over 
them.  They  even  made  themselves  members  of  his  household, 


98  POLITY    AND    GOVERNMENT 

depended  upon  the  bounties  of  his  favor,  and  constituted  them- 
selves a  personal  following  of  their  chosen  leader  such  as  no 
Roman  but  a  fawning  client  would  have  deigned  to  belong  to. 
It  was  a  polity  of  individualism  which  presented  many  striking 
points  of  surprise  to  Roman  observers.  Individuals  had  under 
such  a  system  a  freedom  of  origination  and  a  separateness  of 
unofficial  personal  weight  which  to  the  Roman  were  altogether 
singular  and  in  large  part  repugnant. 

Temporary  Coexistence  of  the  Two  Systems.  —  For  long 
after  the  Teuton  had  established  his  dominion  over  the  Roman- 
ized populations  of  Europe,  Teutonic  and  Roman  institutions 
lived  side  by  side,  each  set  persistent  for  its  own  people.  The 
conquerors  did  not  try  to  eradicate  the  old  population  or  the 
old  laws  of  the  Empire.  They  simply  carried  into  the  midst  of 
the  Empire  their  own  customs,  which  they  kept  for  themselves, 
without  thrusting  them  upon  their  new  subjects.  They  appro- 
priated to  their  own  uses  large  tracts  of  the  conquered  lands,  and 
established  upon  them  such  bodies  of  free  landholders  as  they  had 
known  and  built  their  polity  upon  in  their  old  seats,  either  cast- 
ing out  those  who  already  occupied  them  or  reducing  the  occupiers 
to  a  servile  condition;  but  much  of  the  land  they  left  untouched, 
to  be  occupied  as  before.  Of  course  Teutonic  customs,  being  the 
customs  of  the  dominant  race,  more  and  more  affected  the  older 
Roman  rights,  even  if  only  insensibly;  and  Roman  principles  of 
right,  belonging  as  they  did  to  a  much  superior  and  much  more 
highly  developed  civilization,  which  the  Teuton  had  already  long 
reverenced,  must  have  had  quite  as  great  a  modifying  effect  upon 
the  Teutonic  customs,  which  now,  so  to  say,  lay  alongside  of 
them.  The  Roman  polity  had  entered  into  the  whole  habit  of 
the  older  provincials  and  still  retained,  despite  the  disorders 
of  the  later  days  of  the  Empire,  not  a  little  of  its  old  vigor  and 
potency.  It  had  strongly  affected  the  imaginations  of  the  Ger- 
mans when  they  had  touched  only  its  geographical  borders,  and 
it  did  not  fail  in  a  certain  measure  to  dominate  them  even  now, 
when  it  was  at  their  feet.  They  made  no  attempt  to  stamp  it 
out.  They,  on  the  contrary,  tolerated,  respected,  imitated  it. 

'Personal'  Law. — What  looked  like  tolerance  on  the 
part  of  the  Teutons  was  in  reality  for  the  most  part  only  a  natural 


DURING    THE   MIDDLE    AGES.  99 

outcome  of  certain  fixed  conceptions  of  the  race.  The  hosts  which 
had  poured  into  the  Roman  territories  were  much  greater  and 
more  various  in  their  make-up  than  any  the  Teutonic  peoples 
had  gathered  in  their  communal  life  in  the  forests  of  Germany. 
They  represented  tribes  united :  kindred  tribes,  indeed,  but  still 
tribes  only  very  loosely  confederated  at  home,  if  united  there 
under  any  common  government  at  all.  These  each  had  their  own 
law.  Saliau  Frank  had  one  law  and  custom,  Kipuarian  Frank 
another;  Frank  had  one  right  and  practice,  Burgundian  another; 
and  it  was  a  principle  everywhere  observed  among  Teutons  that, 
whether  joined  with  others  in  a  common  enterprise  or  not,  each 
man  must  be  judged  and  given  his  right  by  his  own  native  law, 
according  to  the  custom  of  his  own  people.  Each  had  his  '  per- 
sonal '  privilege  of  blood  and  custom,  must  be  adjudged  by  his 
own  '  personal '  law,  the  law  of  his  own  tribe  or  homeland.  So 
at  any  rate  we  have  now  come  to  phrase  it;  and  we  know  that  in 
giving  leave  to  the  people  of  the  Roman  territories  to  keep  their 
law  also,  the  conquerors  were  but  extending  to  them  a  habit  of 
their  own,  alike  in  thought  and  practice. 

Relative  Influence  of  Roman  and  Teutonic  Systems.  —  So 
far  as  any  general  description  of  this  mixture  of  Roman  and 
Teutonic  influences  may  be  ventured,  it  may  be  said  that  the 
Teutonic  had  their  greatest  weight  on  the  side  of  political  organi- 
zation, the  Roman  on  the  side  of  the  development  of  private 
rights.  The  Teutons,  of  course,  tried  to  reproduce  in  their  new 
settlements  the  communal  life  peculiar  to  their  own  native  insti- 
tutions; they  endeavored  to  organize  their  own  power,  according 
to  the  immemorial  fashion  of  their  own  politics,  on  the  basis  of 
a  freehold  tenure  of  the  land  and  local  self -administration, —  a 
free  division  of  the  spoils  on  the  principle  of  individual  equality 
among  the  freemen  of  the  tribes.  They  had  stamped  out  the 
Roman  state  in  the  invaded  territory ;  Roman  public  law  they  had 
of  course  displaced,  destroyed.  It  was  Roman  conceptions  as  to 
private  relations  that  gradually  modified  their  Teutonic  system. 
That  system  rested,  as  regarded  its  political  features  hardly 
less  than  at  all  other  points,  upon  the  relations  of  individual 
to  individual,  and  as  the  example  of  the  Roman  practices,  still 
preserved  by  the  conquered  populations  about  them,  modified 


100  POLITY   AND   GOVERNMENT 

these  relations  of  individual  to  individual,  great  changes  were 
by  consequence  inevitably  wrought  in  political  organization  as 
well.  Such  changes  were,  however,  not  in  the  direction  of  a 
reproduction  of  Eoman  political  method,  but  in  the  direction  of 
the  creation  of  that  singular  public  polity  which  we  designate 
as  mediaeval. 

Roman  Influence  upon  Private  Law.  —  The  Eoman  influ- 
ence thus  told  most  directly  and  most  powerfully  through  the 
medium  of  Eoman  private  law.  That  law  had  developed  too 
complete  and  perfect  a  system,  and  was  much  too  suitable  to  the 
new  conditions  in  the  midst  of  which  they  found  themselves,  to 
fail  of  influence  amongst  the  new  organizers.  The  Teutonic 
peoples,  leaders  and  followers  alike,  were  prepared  to  admire  and 
heed  Eoman  civil  arrangements.  The  leaders  had  in  many  cases 
a  fancy  for  seeming  successors  to  the  Eoman  Emperor.  They 
were  prompt,  when  their  power  was  once  established,  to  draw  the 
law  which  was  to  be  '  personal '  to  their  Eoman  subjects  into  a 
crude  but  formal  code,  after  the  manner  of  Theodosius.  King 
Gundobad,  of  the  Burgundians,  had  such  a  code  put  together  out 
of  the  older  Eoman  codices,  the  writings  of  Paulus  and  Gaius, 
and  the  text-books  and  interpretations  of  the  schools,  so  early  as 
the  year  500  A.D.,  five  years  after  he  had  given  his  own  people  a 
similar  statement  of  their  own  law.  The  new  code  was  the  "Lex 
Romano,  Burgundionum,"  the  Roman  law  of  the  Burgundians,  as 
contradistinguished  from  their  own  Burgundian  law;  and  its  pro- 
visions were  chiefly  for  their  conquered  subjects,  not  for  them- 
selves. In  the  year  506  came  the  Lex  Romana  Visigothorum,  the 
Eoman  code  of  the  Visigoths,  formulated  at  the  command  of 
Alaric  II.  and  generally  known  now  as  the  Breviary  of  Alaric, 
the  best  and  most  influential  of  the  barbarian  codes  of  Eoman 
law.  It  was  practically  the  only  source  of  Eoman  law  known  in 
the  south  of  France  till  the  twelfth  century.  Germany  and  Eng- 
land drew  their  knowledge  of  that  law  from  it  until  the  eleventh 
century.  In  511,  or  thereabouts,  Theodoric  the  Great  promul- 
gated a  like  compilation  of  the  Eoman  law  for  his  Ostrogothic 
kingdom  in  Italy,  a  compilation  which  we  know  as  the  Edictum 
Theodorici.  It  was  no  small  evidence  of  Eoman  influence  that 
these  rulers  sought  to  give  their  subjects  written  law  in  both 


DURING   THE   MIDDLE    AGES.  101 

kinds ;  and  the  fact  that  only  priests  were  literate  enough  to 
undertake  the  work  of  codification  meant  that  Roman  principles 
would  creep  unawares  even  into  the  statements  of  native  law; 
for  the  polity  and  learning  of  the  Church  had  its  roots  in  the  tra- 
dition and  law  of  Rome.  '  Personal '  law,  nevertheless,  continued 
to  prevail.  Even  the  greatest  statesmen,  like  Charles  the  Great, 
did  not  make  use  of  their  power  to  cut  at  the  roots  of  local  cus- 
tom or  personal  right.  Sometimes  it  was  the  plaintiff,  sometimes 
the  defendant,  who  established  his  right  to  his  own  personal  law 
in  a  suit ;  but  in  every  case  custom  reigned  where  it  could. 

Roman  Towns.  —  It  was  in  the  towns  that  the  law  of 
Rome  had  its  strongholds.  There  it  had  a  centred  and  lively 
influence:  and  there  it  was  long  undisturbed  by  the  conquerors. 
It  took  the  Teuton  a  long  time  to  learn  how  to  live  in  a  town, 
within  limiting  walls  and  amidst  crowded  houses.  His  native 
habit  called  him  to  a  freer  life:  the  pent-up  town  was  too  rigid, 
too  conventional,  too  narrow  a  sphere  for  his  restless  energies. 
He  at  first  contented  himself,  therefore,  with  the  mere  formal 
submission  of  the  towns:  it  was  long  before  he  entered  them  to 
stay  and  to  take  part  in  their  life.  Meanwhile  not  only  Roman 
private  law,  but  also  Roman  municipal  traditions,  were  preparing 
the  cities  for  the  power  and  independence  which  they  were  to 
claim  and  enjoy  during  the  Middle  Ages.  They  were  to  prove 
Rome's  most  vital  fragments.  They  nursed  her  law  and  repro- 
duced her  politics.  Not  Italy  only,  but  the  Rhone  and  Rhine 
countries  as  well,  were  dotted  over  with  these  abiding  places  of 
the  old  influences  which  had  once  dominated  the  world:  and  from 
them  those  influences  were  eventually  to  issue  forth  again  to  fresh 
triumphs. 

The  Fusion  of  the  Two  Systems.  —  Gradually  there  was 
brought  about  that  fusion  of  German  customs  with  Roman  law 
and  conception  which,  after  a  long  intermediate  fermentation, 
and  in  conjunction  with  certain  institutions  developed  apart  from 
both  was  to  produce  the  conditions  of  modern  political  life.  Dur- 
ing the  Middle  Ages  government  gradually  worked  its  way  out 
from  the  individualism  inherent  in  the  habits  of  the  Germanic 
races  back  into  an  absolutism  not  unlike  that  of  the  Roman 
Empire.  The  intermediate  stage  was  Feudalism. 


102  POLITY   AND   GOVERNMENT 

Effects  of  Movements  of  Conquest  upon  Teutonic  Institu- 
tions.—  Feudalism  was  preceded,  however,  by  modifications  in 
the  Teutonic  system  which  were  not  the  result  of  their  contact 
with  Romanized  peoples  so  much  as  the  direct  effects  of  conquest. 

The  New  Kingship.  —  The  migratory  conquests  of  the 
Teutons  greatly  emphasized  for  a  time  the  principle  of  individu- 
alism,—  the  principle  of  personal  allegiance.  They  advanced  to 
their  new  seats  not  as  separate  marauding  bands,  but  as  emigrant 
nations.  It  was  a  movement  of  races,  not  of  armies  merely.  All 
the  freemen  of  the  tribes  came,  bringing  with  them  their  families, 
their  household  goods,  and  their  slaves,  as  having  come  to  stay. 
But  they  could  not  preserve,  when  on  such  an  errand,  the  organi- 
zation of  times  of  settlement  and  peace.  They  had  not  come,  in 
fact,  with  nothing  but  their  old  and  simple  organization.  They 
came  with  established  discipline  and  subordination,  it  would 
seem, —  with  kingship  already  in  some  measure  recognized 
amongst  them,  ready  to  be  made  permanent.  They  were  forced 
to  elevate  the  commander  of  the  host  to  a  new  kingship.  As 
confederated  tribes  in  their  old  seats  they  had  often  chosen  kings, 
who  typified  in  their  official  dignity  and  sanctity  the  unity  of 
tribal  organization,  who  presided  over  the  national  councils,  and 
who  by  reason  of  their  preferred  position  enjoyed  a  somewhat 
greater  state  than  their  noble  associates  in  the  tribes.  But  these 
early  kings,  like  the  Greek  kings  of  the  Homeric  songs,  were 
scarcely  more  than  patriarchal  presidents,  'first  among  peers.7 
The  later  kings,  in  Gaul,  in  England,  and  in  Spain, —  the  kings 
of  the  emigration, — on  the  other  hand,  ruled  as  well  as  reigned. 
They  had  first  of  all  been  the  leaders  who  commanded  the  invad- 
ing hosts,  and  who  had  met  and  routed  the  Eoman  forces  which 
sought  to  withstand  the  stalwart  immigrants ;  and  so  long  as  con- 
quests remained  incomplete  they  continued  in  command  to  com- 
plete them.  Conquest  being  achieved,  their  authority  was  still 
necessary  to  keep  their  people  together  in  dominant  organization. 
It  was  only  the  logical  and  inevitable  result  that  was  reached, 
therefore,  when  they  became  possessed  of  sovereign  powers  of  a 
sort  such  as  German  politics  had  never  known  before.  Great  as 
was  the  almost  immediate  transformation  of  commanders  into 
kings,  however,  they  were  not  yet  kings  such  as  later  times  were 


DURING    THE   MIDDLE    AGES.  103 

to  see  in  France,  after  feudalism  should  have  worked  its  perfect 
work. 

The  Modified  Land  Tenure.  —  The  invading  peoples  doubt- 
less at  first  took  possession  of  the  conquered  territory  by  a  ten- 
ure not  radically  different  from  that  by  which  they  had  held 
their  older  home  fields,  except  as  it  was  modified  by  the  fact  that 
the  conquered  lands  were  already  occupied  by  a  native  population, 
whom  it  was  not  their  policy  altogether  to  dispossess,  and  whose 
presence  even  as  serfs  would  necessarily  affect  the  system  of  the 
new  masters.  Those  who  were  suffered  to  retain  their  holdings 
only  exchanged  a  Roman  overlordship  for  a  German;  but  they 
constituted  a  new  class  of  citizens  in  the  German  polity,  and 
inevitably  touched  with  Roman  influences  Teutonic  customs  of 
tenure. 

It  was  the  circumstances  of  conquest,  however,  which 
were  the  chief  causes  of  modification.  The  conquered  territory 
was  naturally  disposed  of,  in  large  part  at  least,  by  the  leaders 
of  conquest  in  accordance  with  military  and  strategic  require- 
ments. Such  leaders,  too,  always  get  the  lion's  share  of  property 
won  by  arms,  as  these  lands  had  been;  and,  by  their  gifts,  their 
chief  followers  also  are  made  specially  rich  in  the  new  lands. 
Thus  a  new  bond  of  personal  connection  is  created,  and  conditions 
pregnant  with  profound  social  changes  are  established.  It  was 
by  means  of  such  gifts  and  their  influence  that  the  leaders  of 
conquest  raised  up  about  them  proprietors  all  but  as  powerful  as 
themselves,  and  so  both  cheated  themselves  of  full  kingship,  and 
robbed  society  of  all  chance  of  harmonious  unity.  Power  fell 
apart  into  fragments, —  into  a  vast  number  of  petty  lordships, 
and  the  Feudal  System  was  born. 

The  Feudal  System.  —  But  the  complex  thing  which  we 
call  the  Feudal  System  was  built  up  by  no  single  or  simple 
process.  Feudalism  was  itself  a  process :  the  process  by  which 
armed  and  emigrant  tribes,  settled  upon  conquered  territories, 
were  compacted  into  states,  and  prepared  for  a  new  political 
order  which  should  subdue  the  fierce  individualism  of  the  Teuton 
to  a  novel  discipline  of  subordination  and  obedience.  When  the 
system  had  been  thoroughly  wrought  out  society  resembled  an 
army  spread  abroad  and  encamped,  every  freeman  endowed  with 


104  POLITY   AND   GOVERNMENT 

a  portion  of  land  indeed,  for  his  own  tillage,  but  holding  it  by 
'  military  tenure, '  upon  the  condition  that  he  would  serve  him 
of  whom  he  held  it,  his  immediate  overlord  and  commander, 
whenever  his  call  came  to  the  field :  that  he  would  in  all  things, 
with  a  soldier's  fealty,  prove  himself  his  faithful  follower.  Be- 
fore this  migration  and  conquest  and  settlement  in  new  lands 
the  duty  of  each  Teutonic  freeman  to  come  into  the  field  when 
summoned  had  been  only  a  personal  duty,  which  fell  upon  him 
when  the  summons  came  from  the  free  council  of  his  people :  it 
had  had  no  connection  with  his  title  to  his  land.  But  under  the 
aew  order  of  things  it  had  become  his  duty  as  a  tenant,  and  it  was 
a  duty  which  he  owed,  not  to  the  host  or  to  the  leader  with  whom 
ae  had  voluntarily  associated  himself  for  some  adventure  of  war, 
but  to  him  of  whom  he  held  his  land.  And  every  freeman  held 
his  land  thus  of  some  one,  save  only  the  king  himself.  Military 
society  had  taken  root  in  the  soil.  The  land  supported  an  army 
in  which  every  man  had  a  fixed  place  and  function,  failing  which 
he  was  cut  off  from  his  land.  A  society  that  might  have  fallen 
to  pieces,  had  not  the  unbridled  independence  of  the  Teuton  been 
in  some  way  checked  and  disciplined,  was  in  this  way  held 
loosely  together  by  a  series  of  personal  dependencies  based  upon 
the  tenure  of  land.  A  connected  series  of  greater  and  lesser  land- 
owners, the  less  dependent  upon  the  greater,  and  all  at  least 
nominally  dependent  upon  the  king,  the  centre  and  titular  head 
of  the  hierarchy :  such  was  the  pattern  of  feudal  society. 

Genesis  of  the  System.  —  It  is  possible  to  distinguish  in  a 
general  way  the  several  stages  by  which  this  singular  order  of 
political  life  came  into  existence.  It  was  many  centuries  in  the 
making,  and  forces  almost  without  number  had  their  effect  in 
creating  it  in  its  several  parts ;  but  the  main  outlines  of  what 
took  place  may  be  briefly  stated.  At  first,  no  doubt,  the  Teu- 
tonic conquerors  took  possession  of  the  land  they  had  overrun 
like  the  rough  freemen  they  were:  every  man,  great  or  small, 
got  his  share  of  the  conquered  territory,  and  the  land  was  cov- 
ered, as  in  their  original  homes,  with  a  yeomanry  slow  to  call 
any  man  master  or  submit  to  any  authority  not  of  their  own 
making.  Inevitably,  however,  the  shares  of  land  that  fell  to  the 
greater  leaders  of  the  invading  hosts  of  freemen  very  greatly 


DURING    THE   MIDDLE   AGES.  105 

exceeded  those  which  fell  to  the  ordinary  soldier,  and  the  king's 
share  was  greatest  of  all.  Those  to  whom  the  greater  grants  fell 
could  not  use  them  themselves,  but  they  could  perpetuate  their 
personal  power  and  importance  by  making  gifts  (benefices)  out  of 
them  to  their  immediate  followers,  gifts  revocable  at  will  and 
given  upon  condition  of  continued  allegiance  and  service.  The 
new  kings,  moreover,  bound  their  immediate  servants  and  agents 
to  themselves  by  a  strict  oath  of  homage,  which  rendered  them 
their  men  and  vassals,  and  made  of  them  as  it  were  a  permanent 
comitatus.  It  was  natural  to  reward  such  personal  agents  also 
with  benefices:  and  such  a  process  in  time  bred  an  inevitable 
association  of  ideas.  It  came  to  be  expected  that  vassals  should 
receive  gifts  of  lands  from  their  lords.  It  also  came  to  be  taken 
for  granted  that  those  who  received  such  gifts  should  render 
homage  to  those  of  whom  they  accepted  them.  And  so  land  and 
vassalage  went  at  last  together;  and  every  man  who  had  land 
enough  gave  benefices  out  of  it  in  order  that  he  might  have 
bounden  vassals. 

The  service  rendered  by  a  vassal  was  only  such  service 
as  a  freeman  might  render  and  not  be  degraded.  It  had  never 
been  degrading  in  the  eyes  of  the  Teutonic  freeman  to  be  of  the 
comitatus  or  personal  following  of  a  great  leader.  It  did  seem  to 
him  degrading  to  pay  money,  to  do  any  menial  thing,  to  hold  him- 
self liable  to  any  undefined  or  indefinable  service  :  but  military 
service  degraded  no  man,  nor  anything  that  went  naturally  with 
it.  Moreover,  with  the  greater  grants  of  land  it  became  cus- 
tomary, as  the  new  order  of  things  developed,  to  grant  also  a  cer- 
tain wholesale  right  of  jurisdiction  and  government,  a  long  list  of 
'Immunities'  or  exemptions  from  higher  authority  in  all  matters 
not  military,  which  in  effect  rendered  a  great  estate  a  small 
kingdom.  Those  who  received  the  greater  holdings  received  also 
the  right  to  be  supreme  lords  within  them :  to  make  their  own 
military  levies,  to  coin  their  own  money,  if  they  chose,  to  lay 
taxes,  and  to  hold  their  own  independent  courts  of  justice. 
Although  at  first  such  holdings  were  theoretically  revocable  at 
the  will  of  the  grantor,  it  naturally  became  more  and  more  diffi- 
cult to  withdraw  them.  They  inevitably  became  hereditary,  and 
great  families  throve  upon  them. 


106  POLITY   AND   GOVERNMENT 

The  theory  of  the  system  was  naturally  opposed  to  the 
principle  of  inheritance.  Each  fief  (as  a  feudal  land  gift  was 
called)  was  held  upon  condition  of  military  service,  and  no  over- 
lord or  grantor  could  be  sure  that  his  vassal's  son  would  be  as 
faithful  or  as  capable  as  his  father.  Though  the  heir  took  the 
estate,  therefore,  it  became  the  practice  for  him  to  pay  a  price 
for  the  privilege  of  succession.  The  principle  of  inheritance, 
when  once  it  crept  in,  was  necessarily  the  principle  of  primo- 
geniture :  the  fief  and  the  responsibilities  that  went  with  it  could 
not  be  divided.  To  grant  any  portion  of  it  to  another,  merely 
for  his  use  and  service,  moreover,  was  forbidden,  except  for  a 
price  paid.  The  fief  must  be  kept  a  unit.  Vassals,  nevertheless, 
if  they  had  land  enough,  made  themselves  masters  in  turn  by 
granting  portions  of  their  land  to  others,  upon  a  military  tenure 
like  their  own,  which  rendered  them  more  powerful  without  tak- 
ing away  from  the  obligations  which  they  still  owed  to  their  own 
overlord  and  seigneur.  The  king  was  the  nominal  overlord  of 
all ;  and  upon  some  he  had  direct  claims  of  authority.  For  to 
some  he  granted  lands  and  immunities  upon  condition  that  they 
should  act  as  his  officers  and  representatives  in  the  maintenance 
of  his  authority  amongst  the  vassals  about  them.  But  the  very 
offices  became  hereditary;  grants  and  sub-grants  filled  the  country 
with  a  long  series  of  overlords  and  tenants;  and  the  king's 
authority  grew  very  remote  indeed.  A  man's  first  duty  was  to 
his  immediate  overlord,  and  the  king  seemed  very  far  away. 
The  variety  was  completed  by  the  granting  of  great  territories  to 
the  Church;  and  then  the  Church  feudalized  its  lands.  "Monas- 
teries and  bishoprics  parted  with  their  land  to  fighting  nobles  on 
the  tenure  of  military  service  [to  be  rendered  at  the  call  of  the 
king],  and  received  these  persons  as  their  vassals.7' 

It  was  a  long  time  before  the  small  freeholders,  come 
from  the  loins  of  the  original  conquerors,  were  .drawn  into  the 
network  of  this  hierarchy.  Generation  after  generation  they 
kept  their  independence  and  their  separate  ownership.  But  the 
process  of  feudalism  was  in  the  end  too  strong  for  them.  The 
greater  feudal  lords  grew  to  be  too  powerful  to  be  safe  neighbors ; 
the  feudal  lawyers  established  it  as  a  fundamental  maxim  of  the 
law  that  there  should  be  no  land  without  its  lord  or  seigneur; 


DURING    THE   MIDDLE   AGES.  107 

and  the  poorer  freemen,  their  ranks  thinned  by  war,  their  proper- 
ties too  small  to  carry  the  burdens  of  independence,  and  their 
power  to  combine  every  year  growing  less,  were  fain  to  '  com- 
mend '  themselves  to  the  stronger  owners  near  at  hand :  to  give 
up  their  lands,  that  is,  into  their  keeping,  and  receive  them  back 
again  upon  condition  of  vassalage.  For  the  feudal  overlord  owed 
protection  and  all  that  the  word  implied  to  his  vassal.  Without 
an  overlord,  a  man's  only  redress  could  be  got  in  the  distant 
courts  of  the  king.  He  had  no  protector  at  hand  but  himself. 
He  was  outside  the  fixed  order  of  society,  and  might  any  day  be 
compelled  to  yield  to  force.  And  so,  by  the  two  processes  of 
benefice  and  commendation  the  Feudal  System  was  at  last  com- 
pleted. 

Local  Differences  in  Feudal  Development.  —  There  was 
not,  of  course,  exactly  the  same  method  of  development  every- 
where. In  England,  under  the  Saxons,  and  afterwards  under 
their  cousin  Danes,  the  new  polity  seems  to  have  been  held 
together  more  than  elsewhere  by  that  old  cement  of  personal 
allegiance,  the  relations  of  leader  and  comitatus  (pages  96  and  97)  ; 
in  France,  and  elsewhere  on  the  continent,  it  was  generated  more 
directly  by  territorial  connections  independent  of  leadership  and 
following.  In  the  one  case  men  were  apt  to  own  land  and  possess 
power  because  of  their  personal  relations  with  the  king;  in  the 
other,  they  were  likely  to  stand  in  special  personal  relations  to 
the  king  because  they  owned  land  of  which  circumstances  had 
made  him  titular  overlord.  Speaking  generally,  so  as  to  include 
both  France  and  England,  it  may.  be  said  that  the  benefice  was  of 
two  kinds.  The  English  benefices  were  most  often  estates  granted 
by  the  king  to  his  personal  following,  to  his  comites,  or  to  his 
local  officers  and  agents,  or  to  his  less  independent  adherents,  on 
condition  that  they  should  hold  themselves  ever  ready  to  render 
him  full  aid  and  service,  and  ever  continue  to  adhere  to  him 
with  special  fidelity.  The  French  benefices  were  more  generally 
estates  originally  allodial  (that  is,  held  under  no  one,  but  by  an 
independent  title),  which  had  been  surrendered  to  the  king,  or 
to  some  other  lord  of  the  new  hierarchy,  to  be  received  back  again 
as  his  gift,  for  the  sake  of  the  mutual  obligations  of  faith  and 
support  thus  established.  Nevertheless,  it  is  not  to  be  understood 


108  POLITY    AND    GOVERNMENT 

that  benefices  were  exclusively  of  the  one  kind  in  England,  and 
exclusively  of  the  other  kind  in  France.  In  France  such  estates 
were  very  often  direct  gifts  from  the  king  or  another  superior ; 
and  in  England  they  were  as  often  surrendered  freeholds  as 
rewarding  gifts.  But  each  country  had  its  predominant  type  of 
the  benefice.  Its  common  mark  everywhere  was  that  it  was  a 
landed  estate :  not  an  office  or  any  other  gift,  but  land  held  upon 
conditions  of  fealty  to  a  superior. 

Commendation,  on  the  other  hand,  at  first  at  any  rate, 
had  no  necessary  connection  with  land.  Its  predominant  feature 
was  a  personal  relationship  which  was  rather  that  of  master  and 
man  than  that  of  landlord  and  tenant.  It  seems  to  have  been 
made  necessary  by  the  creation  of  benefices.  As  great  properties 
grew  up  about  them,  as  they  became  encompassed  by  the  great 
network  of  connected  estates  woven  out  of  the  principle  of  the 
benefice,  small  landholders  found  it  necessary  to  avoid  collision 
with  the  growing  power  of  their  princely  neighbors  by  throwing 
themselves  into  the  arms  of  that  power,  by  hastening  to  conform 
and  make  of  their  own  holdings  fiefs  held  of  the  lord  of  the 
greatest  contiguous  manor;  and  as  society  fell  thus  into  regular 
gradations  of  personal  allegiance  based  upon  property,  the  free- 
man who  was  without  property  and  the  native  of  the  conquered 
territory  who  found  himself  suffered  to  have  liberty  but  not  to 
hold  land  by  any  such  tenure  as  would  enable  him  to  become  a 
*  beneficiary,9  were  both  left  without  a  place  in  the  new  social 
order.  Owing  no  definite  service  to  the  powerful  persons  about 
them,  they  could  claim  no  protection  from  them.  They  could 
be  oppressed  without  remedy.  They  were  driven,  therefore,  to 
'commend '  themselves  to  some  lord  who  could  afford  them  security 
—  such  security  at  least  as  the  times  permitted  —  in  return  for 
fealty.  This  was  'commendation.'  It  had,  as  I  have  said,  nc 
necessary  connection  with  the  land,  though  the  small  owner  as 
well  as  the  landless  person  probably  became  his  lord's  'man ' 
rather  by  commendation  than  by  benefice.  It  became  a  univer- 
sally recognized  maxim  of  law  that  'every  man  must  have  his 
lord.'  Whether  through  benefice  or  through  commendation,  he 
must  fall  into  a  definite  place  in  the  minutely  assorted  and  classi« 
fied  society  of  feudalism. 


DURING    THE   MIDDLE    AGES.  109 

Political  Disintegration.  —  The  state  was  thus  disinte- 
grated. It  no  longer  acted  as  a  whole,  but  in  semi-independent 
parts.  There  was  no  longer  any  central  authority  which  acted 
directly  upon  all  individuals  alike  throughout  a  common  terri- 
tory. The  king  controlled  directly,  as  he  had  the  power,  only 
the  greater  lords,  who  were  in  feudal  theory  his  immediate  vas- 
sals; other  men,  lower  down  in  the  series,  could  be  reached  from 
above  only  through  their  immediate  masters.  Authority  filtered 
down  to  the  lower  grades  of  society  through  the  higher.  It 
was  a  system,  not  of  general  obedience  to  a  common  law,  but 
of  personal  obedience  and  subordination,  founded  upon  land- 
ownership. 

Such,  then,  was  the  Feudal  System.  The  king  had  no 
immediate  subjects  except  the  greater  barons  and  the  vassals  on 
his  own  baronial  estates,  and  the  greater  barons  were  obedient 
subjects  only  when  he  had  armed  power  sufficient  to  compel  them 
to  obey.  Their  vassals  served  the  king  only  when  they  them- 
selves did,  and  because  they  did,  arming  themselves  for  the  king, 
as  they  would  arm  themselves  against  him,  only  as  their  lords 
commanded.  In  brief,  every  baron  was  himself  practically 
sovereign  of  those  holding  under  him.  It  was  his  decree  that 
sent  them  into  the  field;  it  was  his  power  that  defended  them 
against  others  who  would  have  oppressed  or  plundered  them; 
and  it  was  in  his  courts  that  justice  was  administered  between 
them.  His  strength  and  favor  were  their  shield  and  title.  Law 
indeed  grew  up  in  the  shape  of  custom ;  but  the  customs  of  one 
barony  differed  from  those  of  another.  Except  in  so  far  as  the 
priest  and  the  lawyer  revived,  in  their  advice  to  the  magnates 
who  consulted  them,  the  principles  of  the  Roman  law,  still 
alive  to  the  studies  even  of  that  time,  no  uniformity  of  practice 
prepared  a  unified  system  of  law  for  the  realm.  It  was  an 
arrangement  of  governments  within  governments,  a  loosely  con- 
federated group  of  inharmonious  petty  kingdoms. 

The  Feudal  Conception  of  Sovereignty.  —  The  most  notable 
feature  of  feudalism  is  that  in  its  system  sovereignty  has  become 
identified  with  ownership.  The  rights  exercised  by  the  barons 
were  in  many  cases  nothing  less  than  sovereign.  Not  only  did 
they  decide  property  titles  by  the  custom  of  their  baronies  and 


110  POLITY    AND    GOVERNMENT 

private  rights  by  laws  determined  in  their  own  courts,  they  often 
also  coined  money,  they  constantly  levied  tolls  upon  commerce, 
and  they  habitually  made  war  when  they  pleased  upon  rival  neigh- 
bors. They  gathered  about  them,  too,  as  the  king  gathered  about 
himself,  an  immediate  following  of  knights,  whom  they  endowed 
with  lands  as,  so  to  say,  barons  of  these  lesser  kingdoms,  the 
greater  baronies.  They  commanded  this  retinue  and  exercised 
these  sovereign  powers,  moreover,  because  of  their  relations  as 
owners  to  the  lands  and  tenantry  of  their  domains.  Sovereignty, 
in  this  petty  parcelled  kind,  had  become  a  private  hereditary 
possession,  an  item  in  family  assets.  Whoever  should  be  able 
to  accumulate  these  territorial  lordships  into  one  really  great 
kingship  would  be  owner,  and,  as  owner,  sovereign  of  the  realm 
(page  115). 

Feudalism  and  the  Towns.  —  The  towns,  meantime,  stood 
out  with  not  a  little  success  against  feudalization.  Many  a  town 
was,  indeed,  dominated  by  the  threatening  pile  of  some  baronial 
castle,  built  over  against  it  on  the  strategic  vantage  ground  of 
hill-summit  or  river  peninsula ;  and  all  were  constrained  sooner 
or  later  to  yield  at  least  nominal  overlordship  to  some  feudal 
superior.  They  kept  alive,  if  it  were  only  in  tradition,  that  true 
conception  of  political  authority  which  made  of  it,  not  a  piece  of 
private  property  to  be  bartered  or  sold,  but  the  organized,  the 
uttered  will  of  a  community. 

The  Guilds.  —  Still,  within  the  cities  there  early  sprang 
up  a  semi-feudal  organization  of  society  altogether  their  own. 
The  importance  of 'a  town  rested,  not  upon  the  ownership  of 
lands,  though  many  towns  owned  not  a  little  land,  but  upon 
wealth  gained  by  trade  and  industry.  The  internal  social  organi- 
zation of  the  towns,  therefore,  tended  more  and  more  to  turn 
upon  the  relations  of  labor.  The  famous  guild  system  sprang 
into  existence.  Every  handicraftsman,  every  trader,  —  like  every 
landowner  and  every  freeman  in  the  society  outside  the  towns,  — 
had  to  find  his  place  in  a  sharply  differentiated  social  classifi- 
cation. Each  occupation  was  controlled  by  its  guild ;  and  that 
guild  was  a  close  corporation,  admitting  to  membership  only 
whom  it  chose.  No  one  could  enter  save  through  the  stringently 


DURING   THE   MIDDLE   AGES.  Ill 

guarded  avenues  of  a  limited  and  prescribed  apprenticeship ;  and 
once  in,  the  apprentice  was  bound  by  the  rules  of  his  order. 
City  government  became  representative  of  the  authority  of  asso- 
ciated guilds.  No  one  was  a  citizen  who  was  not  within  one  of 
the  privileged  associations.  It  is  a  reminiscence  of  this  old  order 
of  things  that  the  building  about  which  the  city  government  of 
London,  as  of  many  other  antique  towns,  still  centres  is  known 
as  the  '  Guildhall.7  Even  the  militia  of  the  towns  were  train- 
bands from  the  several  guilds.  The  town,  also,  had  created  its 
'  estates,'  its  orders,  as  the  country  had  done.  This  was  its  feudal 
system. 

The  City  Leagues.  —  The  greater  trading  towns  nearer  the 
Baltic  and  along  the  Rhine  in  France  and  in  Italy  took  advantage* 
during  the  thirteenth  century,  of  the  opportunities  for  indepen- 
dent action  afforded  by  the  piecemeal  condition  of  feudal  authority 
to  draw  together  into  leagues,  the  better  to  pursue  their  own 
objects ;  and  for  a  long  time  these  leagues  exercised  the  powers 
of  great  states,  making  war  and  peace,  levying  custom,  con- 
cluding treaties  and  alliances.  Their  primary  object  was  to 
cure  those  disorders  of  the  times  which  made  the  roads  unsafe 
and  interfered  with  their  trade.  The  greatest  of  these  leagues 
were  the  Hansa,  more  commonly  known  in  English  writings 
as  the  Hanseatic  (Hansa  means  trade-guild),  and  the  Rhenish. 
The  former  centred  about  the  great  cities  of  Lubeck  and  Ham- 
burg, and  at  one  time  included  ninety  of  the  towns  lying  between 
the  Baltic  and  the  Elbe.  The  latter  had  Worms  and  Mainz 
as  its  leaders,  and  at  one  time  or  another  had  connections 
with  seventy  towns,  some  of  which  stood  as  far  away  from 
the  Rhine  as  Bremen  and  Nuremberg,  though  the  arteries  of 
trade  which  it  was  meant  to  protect  and  keep  open  lay  chiefly 
along  the  Rhine  valley.  Many  great  princes  were  constrained 
to  connect  themselves  with  these  leagues  in  the  heyday  of  their 
power.  But  trade  alliances  afforded  too  many  occasions  for 
jealous  discords,  and  the  growth  of  vast  territorial  monarchies 
too  dangerous  rivalries  for  the  cities ;  and  their  leagues  were 
eventually  broken  up. 

Unifying  Influences.  —  Two  unifying  influences  operated 
more  or  less  potently  during  the  Middle  Ages  to  counteract  the 


112  POLITY   AND   GOVERNMENT 

disintegrating  tendencies  of  the  feudal  system.  These  were  the 
Roman  Catholic  Church  and  the  Holy  Roman  Empire.  Both 
the  Church  and  the  Empire  may  be  said  to  have  been  shadows  of 
imperial  Rome.  They  were,  by  intention  at  least,  the  temporal 
and  spiritual  halves  of  the  old  empire  of  the  Caesars. 

The  Roman  Catholic  Church  had,  historically,  a  real 
connection  with  the  veritable  dominion  of  Rome.  Before  the 
Empire  had  been  shattered  by  the  onset  of  Teutons  and  Turks, 
Christianity  had  become  its  recognized  official  religion.  The 
Pope  in  Rome  represented  one  of  the  great  primacies  which  had 
early  grown  up  within  the  imperial  Church :  and  this  Church  of 
the  West,  sundered  from  the  Church  of  the  East  by  irreconcilable 
differences  of  doctrine,  showed  an  instinct  for  conquest  which 
seemed  a  direct  heritage  from  the  great  pagan  Rome  of  the  olden 
time.  She  mastered  the  new  masters,  the  Teutons,  and  every- 
where insinuated  herself  into  the  new  political  system  which 
developed  under  their  hand.  Not  only  had  every  castle  its 
chaplain,  every  city  and  country-side  its  priest,  but  the  greater 
ecclesiastics  themselves  became  feudal  lords,  masters  of  baronies, 
members  alike  of  the  civil  and  the  religious  hierarchies ;  and 
even  monasteries  owned  vast  estates  which  were  parcelled  out 
upon  a  feudal  tenure. 

But  for  all  it  was  so  interwoven  with  the  feudal  system,  the 
Church  retained  its  internal  unity.  The  Pope's  power  did  not 
fall  apart  as  did  the  king's.  The  priest  acknowledged  in  all 
things  his  allegiance  to  a  universal  kingdom,  the  spiritual  king- 
dom of  the  Church  of  Rome.  The  Church  recognized  no  boun- 
daries, whether  of  baronies  or  of  states,  as  limits  to  her  own 
spiritual  sovereignty.  Her  authority  extended,  she  claimed,  over 
all  kings  of  whatsoever  grade,  over  all  men  of  whatsoever  rank 
or  estate.  The  silent,  unarmed  forces  of  her  influence,  therefore, 
stood  always  on  the  side  of  an  ideal  unity.  And  they  certainly 
retarded  disintegration.  Her  lesson  was  brotherhood  and  a  com- 
mon subjection ;  and  that  lesson,  though  often  neglected,  was 
never  utterly  lost  sight  of  or  forgotten.  She  kept  alive,  more- 
over, in  her  canon  law,  much  of  the  civil  law  of  Rome  j  her  laws 
at  any  rate  were  not  diverse,  but  always  the  same ;  they  reached 


DURING    THE   MIDDLE   AGES.  113 

the  people  and  the  conceptions  of  the  time  through  the  adminis- 
tration not  only  of  her  ecclesiastical  courts,  but  also,  indirectly 
no  doubt,  through  the  judgments  of  the  baronial  courts  of  the 
baron-bishops :  and  whatever  tended  to  unify  law  tended  to  unify 
politics.  The  ecclesiastical  power  was  always  on  the  side  of  any 
good  Catholic  who  proved  himself  capable  of  creating  larger 
wholes  of  political  authority,  larger  areas  of  civil  unity.  By 
precept  and  by  example  the  Church  was  imperial. 

The  Holy  Roman  Empire.  —  Under  the  direct  descendants 
of  Chlodwig,  the  once  vast  dominions  of  the  Franks  fell  asunder 
in  several  pieces ;  but  Charles  the  Great  (768-814)  reunited  and 
even  extended  them.  He  brought  together  under  his  sword 
much  of  the  territory  now  included  in  Germany,  Switzerland,  Italy 
(all  save  the  southernmost  part),  France,  and  Belgium.  And 
neither  any  Teuton  nor  any  successor  of  Teutons  in  western  Eu- 
rope ever  gathered  wide  territories  under  his  sway  without  dream- 
ing of  restoring  the  Roman  Empire  and  himself  ascending  the 
throne  of  the  Caesars.  From  Charles  the  Great  to  the  present 
German  Kaiser  the  spell  of  the  Roman  example  has  bound  the 
imagination  of  every  European  conqueror.  Charles  had  this  ambi- 
tion clearly  in  his  view,  and  circumstances  peculiarly  favored  its 
realization.  At  the  same  time  that  he  reached  the  height  of  his 
power,  Rome  reached  the  acme  of  her  discontent  with  what  she 
considered  the  heresies  of  the  Eastern  See,  and  the  political 
disorders  at  Constantinople  gave  the  Roman  pontiff  pretext  for 
casting  finally  loose  from  all  Eastern  connections.  The  Empress 
Irene  deposed  her  son  and  usurped  his  throne;  the  Italians 
declared  that  no  woman  could  succeed  to  the  titles  of  the  Caesars  ; 
and  the  Pope,  arrogating  to  himself  the  prerogatives  of  king- 
maker, crowned  Charles  the  Great  emperor  of  what  later  genera- 
tions have  known  as  the  Holy  Roman  Empire,  — '  Holy '  because 
created  by  the  authority  of  mother  Church. 

Here  was  a  real  '  Western  Empire ' ;  the  first  had  been  only 
an  administrative  half  of  the  once  undivided  dominions  of 
the  emperors.  Charles  gave  to  his  empire  real  vitality  while 
he  lived ;  he,  moreover,  did  what  he  could  to  hasten  civil  unity 
by  promulgating  anew  the  Visigothic  version  of  the  Roman  law 


114  POLITY   AND   GOVERNMENT 

(page  100) ;  and,  although  his  empire  broke  up  upon  his  death, 
an  almost  uninterrupted  line  of  emperors,  of  one  great  feudal 
house  or  another,  carried  the  titles  of  Rome  through  the  Middle 
Ages  to  modern  times,  now  and  again  backing  them  with  real 
power  and  always  preserving  for  Germany  a  shadow  at  least  of 
unity  in  a  time  of  real  disintegration.  Believing  themselves, 
besides,  in  the  early  times  at  any  rate,  the  lineal  and  legitimate 
successors  of  the  Caesars,  there  was  special  reason  why  every 
emperor  should  continue  to  build,  so  far  as  he  had  the  oppor- 
tunity, as  Charles  the  Great  had  begun  to  build,  on  the  law  of 
Rome  as  a  foundation,  never  designedly,  as  Charles  the  Bald 
declared,  enacting  anything  repugnant  to  it.  All  who  from  time 
to  time  drew  to  the  side  of  the  imperial  power  in  the  conflicts  of 
disordered  ages  also  naturally  affected  the  language  and  princi- 
ples of  the  same  system.  The  Empire  was,  therefore,  not  only 
sometimes  a  silent  witness  and  sometimes  a  great  power  for  uni- 
fication, but  also  always  a  steady  influence  on  the  side  of  a  system 
of  law  more  advanced  and  unifying  than  that  of  feudalism. 

Centralizing  Forces :  the  Carolingians.  —  The  rise  of  the 
family  of  Charles  the  Great  into  power  illustrates  the  character 
of  the  chief,  indeed  the  only  potent,  centralizing  forces  of  the 
feudal  time.  Those  forces  lay  in  the  ambition  of  great  barons. 
Under  the  descendants  of  Chlodwig  (the  Merowingians)  the  ter- 
ritory of  the  Franks  tended  more  and  more  to  become  permanently 
divided  into  two  distinct  parts.  There  were  often,  it  is  true, 
more  parts  than  two :  for  it  was  the  Frankish  custom  to  divide 
even  a  royal  inheritance  between  all  the  sons  of  a  deceased  pos- 
sessor. But,  as  it  fell  out  in  the  long  run,  the  most  permanent 
division  was  that  between  Neustria  (the  western  half)  and  Aus- 
trasia  (the  eastern).  In  both  of  these  kingdoms  the  Merowingian 
rulers  soon  degenerated  into  mere  shadows  of  their  imperative, 
dominant  ancestors;  and  they  were  presently  displaced  by  a 
powerful  family  of  Austrasia,  the  family  of  Charles  Martel. 
Charles  Martel  was  Mayor  of  the  Palace  under  the  Austrasian 
branch  of  the  royal  family.  The  office  of  Mayor  of  the  Palace, 
though  an  office  in  the  king's  household,  was,  it  would  seem, 
filled  rather  by  dictation  of  the  powerful  lords  of  the  kingdom 


DURING   THE   MIDDLE   AGES.  115 

than  by  a  free  royal  choice.  It  was  filled,  consequently,  at  any 
rate  in  the  times  of  which  I  am  now  speaking,  by  the  leader  of 
the  great  territorial  chiefs,  by  the  leader,  that  is,  of  the  king's 
rivals  in  power.  It  had  indeed  become  an  hereditary  office  held 
by  the  greatest  of  the  baronial  families.  Charles  Martel  was  a 
soldier  of  genius:  he  handed  his  office  on  to  his  son  and  his 
grandson:  and  they  were  men  abler  than  he.  His  son,  Pepin, 
with  the  sanction  of  the  Pope,  whom  he  had  greatly  served, 
became  king  of  the  Franks,  in  name  as  well  as  in  reality,  to  the 
final  ousting  of  the  old  line  of  '  do-nothing '  monarchs ;  and 
Pepin's  grandson  was  Charles  the  Great. 

The  Capets :  Concentration  of  Feudal  Power.  —  In  the 
tenth  century  a  similar  change  was  wrought  in  France.  The 
descendants  of  Charles  Martel  (Carolingians)  had  in  their  turn 
lost  vigor  and  become  unfit  for  power.  They  were  displaced, 
therefore,  in  the  western  half  of  their  dominions  (in  Neustria) 
by  a  family  of  warriors  whom  they  had  endowed  first  with  the 
county  of  Paris,  and  afterwards  with  the  duchy  of  France,  as  at. 
once  a  reward  for  their  services  in  withstanding  the  incursions 
of  the  Northmen  and  a  stake  in  the  threatened  territory.  The 
duchy  of  France  was  only  a  comparatively  small  district  about 
Paris;  but  the  vigor  and  capacity  of  the  Capets,  its  dukes, 
speedily  made  it  one  of  the  most  important  feudal  properties  in 
the  whole  of  the  great  territory  to  which  it  was  eventually  to 
give  its  name.  They  became  the  chiefs  of  the  baronial  party, 
and  when  discontent  with  the  Carling  kings  culminated  it  was 
they  who  became  first  'kings  of  the  barons,'  and  finally  kings  of 
France.  Refusing  to  degenerate,  as  the  Merowingian  and  Caro- 
lingian  princes  had  degenerated,  they  continued  to  develop, 
generation  after  generation,  a  kingdom  destined  one  day  to  rank 
with  the  greatest  of  Europe;  and  that  by  a  process  planned  as  if 
meant  to  illustrate  how  best  the  feudal  system  might  be  used  for 
its  own  destruction.  By  every  means,  —  by  war,  by  marriage,  by 
contract,  by  stratagem,  by  fraud,  —  they  drew  all  the  greater  feudal 
sovereignties  into  their  own  possession,  until  at  length,  their 
duchy  of  France  and  the  kingdom  of  France  were  indeed  identical; 
until,  having  absorbed  all  scattered  authorities,  they  had  made 


116  ROMAN   LAW    IN   EUROPE. 

sovereignty,  once  possessed  privately  in  sundered  pieces,  again  a 
whole, —  but  a  whole  which,  by  the  strict  logic  of  feudalism,  was 
their  private  estate;  until  they  almost  literally  possessed  the 
land,  and  Louis  XIV.  could  say  with  little  exaggeration,  'L'&at 
c'est  moi.'  They  had  gathered  the  fragments  of  the  feudal  system 
into  a  single  hand,  and  had  made  the  state  itself  a  feudal  pos- 
session, a  family  estate. 

The  Piecing  together  of  Austria  and  Prussia.  —  Later  still 
the  same  process  was  repeated  in  Prussia  and  in  Austria.  By 
conquest,  inheritance,  forfeiture,  marriage,  contract,  fraud, 
powerful  feudal  families  pieced  together  those  great  kingdoms, 
to  become  in  after  times  the  bases  of  national  organization.  In 
neither  Prussia  nor  Austria  did  the  process  go  so  far  as  in 
France,  though  Austria,  under  the  house  of  Habsburg,  became 
possessor  of  the  imperial  throne  of  the  Holy  Roman  Empire,  and 
Prussia,  under  the  house  of  Hohenzollern,  has  become  the  central 
and  dominant  state  of  a  new  German  Empire. 

THE  DIFFUSION  OF  ROMAN  LAW  IN  EUROPE. 

From  the  fifth  to  the  twelfth  centuries  Roman  law 
inhered  in  the  confused  civil  methods  of  the  times  for  the  most 
part  as  a  mere  unsystematized  miscellany  of  rules  applicable  to 
the  descendants  of  the  Roman  provincials  and  observed  largely 
within  the  towns.  As  the  old  distinctions  between  Roman  and 
Teuton  faded  away,  however,  in  the  gradual  mixture  of  the  popu- 
lations, these  rules  entered  more  and  more  into  the  general  mass 
of  common  custom.  This  process  was  in  great  part  unconscious; 
there  was  no  scientific  selection  in  the  development. 

The  Barbaric  Codes.  —  It  was  not  from  mere  tradition, 
however, —  not  simply  from  Roman  law  transmuted  into  unre- 
corded provincial  custom,  —  that  the  knowledge  of  these  centuries 
concerning  the  civil  law  of  the  Empire  was  derived,  but  from 
fragments  of  the  Theodosian  legislation  and  of  the  writings  of 
the  jurists  which  had  found  embodiment  in  the  Code  of  Alaric  II. 
(page  100),  which  is  known  to  quotation  as  the  Breviary  (bre- 
viarium  Alaricianum).  The  West  Goths  themselves  had  not  long 
remained  contented  with  that  compend  of  the  law.  In  the  seventh 
century  there  had  been  prepared  in  Spain  a  new  Lex  Visigothorum 


ROMAN   LAW   IN   EUROPE.  117 

which  contained  a  summary,  not  of  Roman  rules  only,  but  of 
Gothic  custom  as  well,  and  which,  superseding  the  earlier  com- 
pilation of  Alaric,  formed  the  basis  for  later  codifications  of 
Spanish  law.  But  the  south  of  France,  which  had  once  owned 
the  dominion  of  the  Visigoth,  retained  the  Code  of  Alaric ;  it  was 
transmitted  thence  to  the  north  of  France,  to  be  handed  on  to 
Germany  and  England  ;  and  for  all  of  these  countries  it  continued 
to  be  the  chief,  if  not  the  only,  source  of  Roman  law  until  the 
eleventh  or  twelfth  century.  Charles  the  Great,  as  I  have  said, 
republished  it,  accepting  it  as  the  recognized  manual  of  Roman 
legal  principle.  Even  Italy  had  had  the  continuity  of  her  legal 
tradition  broken  by  barbarian  invasion,  —  especially  by  the  inroad 
of  the  raw  Lombards,  —  and  had  had  to  keep  the  fragments  to- 
gether as  best  she  might  amidst  just  such  a  confusion  of  '  per- 
sonal '  laws  as  prevailed  elsewhere  in  the  once  Roman  world 
(page  98). 

Custom  and  Written  Law  in  France.  —  It  was  at  this  time 
that  the  north  and  south  of  France  came  to  be  distinguished  as 
respectively  the  '  country  of  custom '  (pays  de  coutume)  and  the 
'country  of  written  law'  (pays  de  droit  tcrit).  In  the  south, 
which  had  been  thoroughly  Romanized  for  centuries,  there  was 
the  written  law  of  Rome  ;  in  the  north,  which  had  never  been  so 
thoroughly  Romanized,  and  which  was  now  in  its  northern  part 
quite  thoroughly  Germanized,  there  reigned  in  unrestrained  con- 
fusion the  Teutonic  customs  of  the  barbarian  masters. 

The  Study  of  the  Roman  Law.  —  But  in  the  twelfth  cen- 
tury the  law  of  Rome  fell  upon  the  good  fortune  of  being  sys- 
tematically studied  once  more  by  competent  scholars,  and  once 
more  cultivated  by  scientific  lawyers.  And  not  the  Code  of 
Alaric,  but  the  vastly  more  perfect  Corpus  Juris  Civilis,  as  the 
twelfth  century  called  it,  Justinian's  (or,  rather,  Trebonian's) 
great  compilation,  was  the  basis  of  the  revived  study.  The  new 
cultivation  of  the  law  began,  naturally  enough,  in  the  Italian 
cities.  There  the  movements  of  trade  were  quick  and  various ; 
and  there  a  various  population  was  not  only  mixed  of  many  ele- 
ments but  fused  and  united,  by  intermarriage  no  less  than  by 
close  social,  political,  and  commercial  intercourse.  For  the 
quick,  informal,  multifarious  operations  of  trade  Teutonic  law 


118  ROMAN   LAW   IN   EUROPE. 

had  made  no  more  suitable  provision  than  had  the  jus  civile  in 
the  old  days  at  Rome :  a  jus  gentium  was  needed  such  as  the 
Eoman  jurisprudence  stood  ready  to  supply.  <  Personal '  law 
could  not  obtain  where  elements  were  so  fused  and  united  by 
common  undertakings  and  interests  as  well  as  by  an  actual  mix- 
ture of  bloods.  "  In  Justinian's  Digest  the  Italian  jurists  of  the 
twelfth  century  found  a  system  of  law  that  was  adequate  to  the 
needs  of  the  new  commerce ; "  and  great  schools  sprang  promptly 
into  existence  for  its  study  and  propagation.  The  first  of  these 
was  also  to  be  the  most  famous,  the  University  of  Bologna,  estab- 
lished late  in  the  eleventh  century,  and  destined  to  become  the 
chief  seat  of  the  study  of  the  Roman  code.  Pisa  and  other  Italian 
cities  then  took  up  the  new  pursuit.  Presently  the  interest 
had  spread  to  France  and  to  Spain,  going  in  France  first  to 
Montpellier  and  Paris,  afterwards  to  Bourges,  Orleans,  and  Tou- 
louse, the  old  capital  of  the  West  Goths ;  and  in  Spain  creating 
(A.D.  1254)  the  notable  University  of  Salamanca.  From  Spain 
and  France,  Holland  caught  the  fashion,  giving  to  Europe  in  the 
seventeenth  century  the  illustrious  jurist  Hugo  G-rotius,  who 
created  out  of  the  great  principles  of  equity  discoverable  in 
Roman  Law  the  elevated  and  influential  science  of  International 
Law.  In  England,  too,  the  same  studies  began  to  be  affected 
almost  immediately  after  the  rise  of  the  school  of  Bologna,  and 
are  said  to  have  been  regularly  pursued  there  down  to  the  six- 
teenth century. 

This  sudden  spread  and  luxuriance  of  the  study  is  impres- 
sive evidence  of  a  common  preparation  and  need  for  it.  The 
cultivation  of  the  Roman  law  in  the  schools  may  in  some  in- 
stances indicate  a  clerical  influence  ;  but  the  study  was  too  general 
and  too  spontaneous  to  be  attributable  mainly  to  this  or  to  any 
other  single  cause. 

Influence  of  the  Schools. — The  Italian  schools  of  law 
almost  immediately  drew  to  them  students  from  all  parts  of 
Europe,  and,  in  time,  "  sent  out  masters  and  doctors  by  the  hun- 
dreds." Priests  and  laymen  alike  got  their  training  in  them. 
"  Returning  to  their  homes,  the  civil  doctors  crowded  the  heredi- 
tary expounders  of  local  usage  off  the  judicial  bench.  Under  the 
fostering  care  of  kings  and  princes,"  interested  to  see  a  centralized 


ROMAN   LAW   IN   EUROPE.  119 

power  built  up  by  their  courts,  there  grew  up  everywhere  bodies 
of  accomplished  lawyers  and  a  '  learned  judiciary ' ;  and  "  Europe 
obtained  a  common  commercial  law  in  the  Corpus  Juris  Civilis, 
as  it  had  obtained  a  common  family  law  in  the  Corpus  Juris 
Canonici"  the  developed  jurisprudence  of  the  Church. 

The  materials  upon  which  teachers  and  students  alike  worked  in 
the  schools  were  not  the  pure  sources  of  the  Roman  law,  but  a  mixture  of 
Roman,  canonical,  and  Lombard  law  which  showed  the  influence  of  an 
earlier  cultivation  of  jurisprudence  by  learned  men  among  the  Lombards 
in  their  school  at  Pa  via. 

Influenct  of  the  Church.  —  The  Roman  Church  had  early 
effected  a  conquest  of  the  Teutonic  invaders,  and  the  new  masters 
of  Europe  had  left  its  organizations  intact.  "It  cared  for  educa- 
tion and  dispensed  charity.  It  drew  into  its  domain  the  entire 
control  of  the  family  relations.  It  undertook,  partly  in  its  own 
interest,  to  enforce  testaments,"  or  wills,  after  the  Roman  man- 
ner. The  Teutonic  peoples,  held  together  by  ties  of  consanguinity 
and  accustomed  to  communal  rather  than  to  individual  ownership 
in  matters  of  property,  had  not  admitted  to  their  law  conceptions 
of  free  contract,  individual  ownership,  and  succession  by  will 
such  as  the  developed  jurisprudence  of  Rome  had  given  currency 
to.  But  the  will,  the  contract,  and  the  principle  of  separate 
ownership  were  indispensable  to  the  Church  if  she  was  to  build 
up  her  properties  by  the  gifts  and  devises  of  pious  persons  to 
whom  her  priests  were  permitted  to  minister.  "  They  were  also 
characteristic  and  essential  elements  in  the  civilization  amid 
which  the  Church  had  been  reared  to  maturity."  (Maine.)  The 
whole  weight  of  the  Church's  power  was  thrown,  therefore,  in 
favor  of  the  adoption  of  these  important  doctrines  and  practices 
out  of  the  law  of  Rome.  And  she  was  able  to  make  her  great 
influence  tell  in  all  the  matters  to  which  she  gave  her  attention 
because  she  "  had  brought  over  from  the  Roman  into  the  mediaeval 
world  a  well-developed  governmental  organization.  She  added 
to  this  a  complete  set  of  courts,  with  appeal  to  Rome."  (Smith.) 
And  her  priests  possessed  the  learning  of  the  time ;  were  indis- 
pensable as  counsellors  and  administrators,  no  less  than  as  clerks  ; 
were  the  compilers  of  codes,  whether  of  Roman  or  of  Teutonic 
rules ;  had  in  all  things  the  ascendency  of  training  and  knowledge. 


120  ROMAN   LAW   IN   EUROPE. 

The  currency  of  the  Latin  language  had  also  its  influence 
in  spreading  abroad  the  forces  which  were  to  bring  in  the  Roman 
law.  It  was  everywhere  in  Europe  the  speech  of  commerce,  of 
learning,  and  of  public  business :  the  common  repository  and 
vehicle  of  knowledge  and  of  the  forms  of  important  transactions. 

Entrance  of  Roman  Law  into  the  Legal  Systems  of  Europe. 
—  Of  course  this  widespread  interest  in  the  study  of  Roman  law 
was  not  all  speculative.  The  study  and  the  practice  of  the  law 
acted  and  reacted  on  one  another.  Its  rules  were  more  and  more 
consciously  and  skilfully  fitted  into  the  growing  law  of  the  king- 
doms which  were  emerging  from  the  feudal  system  because  it  was 
being  adequately  mastered  and  systematized  at  the  universities  ; 
and  it  was  being  mastered  and  systematized  at  the  universities 
because  it  was  being  more  and  more  called  for  in  the  actual  ad- 
ministration of  justice.  Its  use  and  its  cultivation  went  hand  in 
hand. 

In  France.  —  Roman  law  came  into  use  with  much  the 
same  pace  with  which  the  Capets  advanced  to  complete  power, 
and  triumphed  with  the  perfecting  of  the  centralization  which 
they  effected.  Louis  IX.  ordered  the  Roman  law  translated  into 
French ;  established  the  right  of  the  crown  to  hear  appeals  from 
the  feudal  courts  in  all  cases  ;  sent  royal  judges  on  circuit  to 
hear  complaints  of  infringed  rights ;  and  erected  at  Paris  the 
famous  Parliament  of  Paris  as  the  supreme  tribunal  of  the  realm. 
The  feudal  lords  of  France  were  the  nominal  members  of  this 
court,  but  trained  jurists  (legistes),  appointed  as  experts  to  assist 
them,  became  in  practice  its  real  members.  Schooled  in  the 
Roman  law,  they  admitted  its  principles  into  all  their  decisions ; 
and  they  gave  to  the  king  from  the  same  source  the  maxim  which 
declared  the  will  of  the  prince  to  be  law.  As  the  king's  jurisdic- 
tion grew,  the  principles  of  Roman  jurisprudence  gained  wider 
and  wider  acceptance  and  supremacy. 

The  Method  by  which  Roman  law  crept  in  was  always  the 
same :  it  was  introduced,  not  by  legislation,  but  by  adjudication, 
by  the  decision  of  cases  in  the  royal  courts.  It  was  here  that  the 
learning  of  the  trained  lawyers  told,  and  the  desire  of  the  king 
to  see  the  single  power  of  the  throne  magnified.  The  royal 


ROMAN   LAW   IN   EUROPE.  121 

courts,  as  they  were  developed  in  the  provinces,  applied  local 
custom  in  their  decisions,  for  the  most  part,  only  upon  very  con- 
clusive proof  of  its  existence  and  its  definiteness,  and  in  the 
absence  of  definite  and  conclusive  proof  of  a  contrary  custom 
resorted  always  to  the  Roman  as  to  a  '  common '  law.  The  law 
grew  thus,  and  was  made  consistent,  by  judgment,  by  written 
opinion,  by  royal  ordinance ;  and  a  French  jurisprudence  began 
to  make  its  appearance,  working  upon  the  various  materials 
which  were  to  enter  into  the  final  law  of  the  land. 

And  presently  the  Roman  law  came,  so  to  say,  from  out 
the  nation  to  meet  the  royal  system.  Very  early  in  Berri,  Bour- 
bonnais,  and  Auvergne,  the  central  districts  of  France,  the  law 
of  Rome  had  been  consciously  adopted  as  the  common  law  of 
the  land,  to  be  appealed  to  in  the  absence  of  proof  of  any  special 
custom  or  enactment.  Subsequently  it  came  to  be  considered  as 
in  some  sort  the  supplementary  common  law  of  all  France,  for, 
though  never  established  as  such  in  the  north  of  France,  it  was 
even  there  appealed  to  in  doubtful  cases  as  '  written  reason/ 
The  Code  Napoleon,  the  last  great  codification  of  French  law,  has 
been  described  as  in  great  part  a  republication  of  the  laws  of 
Justinian  as  those  laws  have  been  modified  and  fitted  to  new  cir- 
cumstances by  the  processes  of  French  history. 

Local  Customs  in  France.  —  It  is  important  to  observe 
that  the  unifying,  harmonizing  influences  exercised  by  the  grow- 
ing royal  jurisdiction  were,  for  a  long  time  at  any  rate,  influ- 
ences which  affected  procedure  much  more  than  the  internal, 
essential  elements  of  legal  principle.  The  differentiation  between 
district  and  district  which  had  taken  place  in  the  process  of  feu- 
dalization  had  been  of  the  sharpest,  most  decided  character. 
When  the  Capets  first  assumed  the  titles  of  kingship  there  were 
duchies  as  great  as  France.  The  work  of  extending  and  consoli- 
dating the  kingdom  consumed  several  centuries  ;  and,  meanwhile, 
each  petty  sovereignty  was  developing  its  own  law  apart.  Much 
of  the  territory  which  afterwards  became  part  of  France  was, 
during  the  same  period,  moreover,  in  foreign  hands,  held  by 
England  or  Burgundy.  The  kingdom  as  finally  consolidated, 
therefore,  presented  a  very  great  variety  of  deeply  rooted  and 
persistent  local  laws  and  customs.  Normandy  had  one  set  of 


122  ROMAN   LAW   IN   EUROPE. 

customs,  Berri  a  very  different  set,  Anjou  a  third,  Brittany  a 
fourth ;  and  so  throughout  the  once  piecemeal  country. 

Unifying  Influence  of  the  Koyal  Prerogative.  —  The  in- 
fluence of  the  royal  jurisdiction  upon  this  heterogeneous  mass  of 
differing  laws  was,  as  I  have  said,  at  first  rather  to  unify  and 
systematize  the  procedure  of  the  local  courts,  which  administered 
local  law,  than  to  effect  changes  in  the  local  customs  themselves. 
Since  appeals  to  the  king's  justice  were  possible  in  all  cases,  the 
formal  method  of  appeal  tended  to  become  the  same  everywhere ; 
and  the  methods  of  the  king's  courts  in  dealing  with  appealed 
cases  more  and  more  tended  to  set  the  fashion  of  procedure 
throughout  the  loose  system,  though  the  royal  judges  continued 
to  decide  appealed  cases  according  to  the  law  of  the  district  from 
which  they  were  brought  up. 

By  degrees,  however,  new  ideas  and  principles,  as  well  as 
new  modes  of  procedure  and  appeal,  were  infused  into  local 
justice.  The  law  and  the  legal  practice  of  each  district  alike 
more  and  more  distinctly  and  consciously  approximated  to  the 
models  of  organization  and  to  the  standards  of  decision  obtaining 
in  the  king's  courts.  The  territorial  tribunals  accepted  the  ser- 
vices of  lawyers  trained  in  Roman  principles  and  inclined  towards 
regal  precedents ;  and  the  local  law  officers  of  the  crown  were  of 
course  everywhere  ready  to  effect  whatever  was  within  reach  of 
their  functions  or  example  in  the  way  of  bringing  local  custom 
around  to  the  rules  of  universal  acceptance  to  be  found  in  Roman 
law  and  regal  decision.  Independently,  moreover,  of  the  influ- 
ence of  the  crown,  the  Roman  law  was  entering  the  local  courts, 
becoming  common  law  in  Auvergne  and  Bourbonnais,  as  we  have 
seen,  before  it  became  the  common  law  of  France. 

Through  the  Parliament  of  Paris  the  Roman  law  had,  so 
to  say,  a  double  door  of  entrance.  The  jurisdiction  of  that  court 
was  both  spiritual  and  temporal :  so  that  both  the  Code  of  Jus^ 
tinian  and  the  canons  of  the  Church  contributed  their  versions 
of  Roman  judicial  practice  and  tradition  to  its  findings. 

In  the  Code  Napoleon,  the  final  codification  of  French  law 
as  it  had  emerged  from  the  long  processes  of  the  Middle  Ages, 
we  find  a  statement  of  the  law  which  was  in  fact  made  possible 
by  the  earlier  labors  of  great  French  jurists,  like  the  accomplished 


ROMAN    LAW    IN    EUROPE.  123 

Pothier.  In  matters  of  inheritance,  in  the  rules  which  govern 
the  family  relations,  and  in  the  law  of  marriage  the  customs  of 
France  find  their  place,  though  as  if  they  had  been  digested  and 
formed  anew  under  the  influence  of  the  Roman  jurisprudence. 
In  the  law  of  contract,  the  law  of  property,  the  rules  of  judicial 
trial,  and  all  questions  of  the  legal  burdens  which  may  be  placed 
upon  land,  Roman  law  has  had  a  chief  place  of  influence.  Every- 
where, however,  there  are  traces  and  elements  of  fusion.  It  is  a 
law  written  over  with  history  and  with  the  labors  of  trained 
students  of  the  law. 

In  Germany  there  was  no  central  power  such  as  that  which 
served  to  build  together  the  legal  systems  of  France  and  of  Eng- 
land. The  feudal  system  had  done  its  work  more  thoroughly 
there  than  elsewhere  :  and  Germany  emerged  from  the  Middle 
Ages,  not  a  nation,  but  a  congeries  of  petty  states.  There  was 
a  form  of  union  among  them,  indeed,  in  the  Holy  Roman  Empire, 
and  throughout  all  the  changes  of  German  history  the  imperial 
influence  had  sought  to  shelter  and  to  foster  Roman  law,  the  law 
of  empire  and  of  princely  rule.  The  imperial  courts,  the  impe- 
rial lawyers,  the  imperial  party  in  Germany,  were  always  admin- 
istrators or  advocates  of  its  principles ;  and  when  the  house  of 
Habsburg  came  to  the  imperial  throne,  as  when  other  powerful 
emperors  had  reigned,  there  was  no  small  potency  in  these  influ- 
ences. But  the  final  reception  of  the  Roman  law  was  postponed 
in  Germany  until  the  sixteenth  century,  and  was  due  to  other 
forces  than  those  associated  with  the  royal  power. 

Germany's  Reception  of  Roman  Law.  —  The  reception  of 
the  Roman  law  into  the  law  of  Germany  was  due  to  various  cir- 
cumstances, but  not  entirely  to  the  poverty  or  imperfections  of 
German  law.  German  law  at  some  points  may  fairly  be  said  to 
have  been  superior  to  Roman  law  in  its  suitability  to  the  needs 
and  conditions  of  the  time.  Neither  was  the  law  of  Rome  received 
as  naturally  supplementary  to  German  law  and  of  a  sort  to  effect 
its  further  and  more  complete  development';  for  there  were  not 
a  few  radical  oppositions  of  principle  between  the  two  systems. 
For  example,  Roman  law  was  based  upon  the  recognition  of  the 
entire  equality  of  persons,  while  German  law  ranked  them  in 
orders,  with  differing  values  and  privileges  ;  Roman  law  allowed 


124  ROMAN   LAW   IN   EUROPE. 

the  free  alienation  of  land  and  set  up  the  principle  of  absolute 
individual  ownership,  while  German  law  had  at  its  root  ideas  of 
communal  and  family  ownership  and  put  many  restrictions  upon 
alienation.  Moreover,  there  could  be  no  doubt  that  the  law  of 
feudal  relationships  had  had  as  complete  a  development  in  Ger- 
many as  anywhere  else  in  the  European  world ;  and  yet,  along 
with  the  Eoman  law,  which  she  took  from  the  schools  and  com- 
mentators of  Italy,  Germany  took  also  the  Italian  Feudal  Law, 
to  which  the  Italian  students  had  given  a  similar  systematic 
formulation. 

The  Roman  law  was  received  in  Germany  largely  because  of 
the  feebleness  and  disintegration  of  the  judicial  system  there ; 
because  the  old  popular  courts,  which  administered  only  an  un- 
changing custom  and  tradition,  inevitably  decayed  with  the 
growth  of  society ;  because  single  judges  trained  to  the  law  were 
substituted,  and  the  only  law  in  which  one  could  be  trained  was 
the  Roman  law  of  the  Italian  schools.  The  introduction  took 
place,  not  because  princes  controlled  the  courts,  but  because 
litigants  insisted.  They  were  dissatisfied  with  the  administra- 
tion of  justice  in  the  unlearned  courts.  They  wanted  a  court, 
a  judge,  learned  in  the  law.  "  The  single  judge  must  be  a  learned 
judge,  by  the  same  necessity  by  which  the  old  popular  court  was 
an  unlearned  court." 

Throughout  the  Middle  Ages  the  popular  courts  remained 
the  only  vital  courts  in  Germany ;  when  they  first  began  to  give 
way  their  place  was  taken  by  courts  that  were  no  better,  being 
made  up  of  some  unlearned  agent  of  the  feudal  lord  of  the  dis- 
trict, assisted  by  assessors  as  little  trained  for  the  function  as 
he.  In  France  and  in  England  a  native  jurisprudence  grew  up, 
because  the  royal  power  was  able  to  set  up  a  system  of  courts, 
to  put  trained  officers  into  them,  and  to  draw  differing  local  cus- 
toms to  a  common  administration  and  development.  But  there 
was  no  power  capable  of  rendering  the  like  service  in  Germany ; 
the  decay  of  the  popular  courts  did  not  mean  the  substitution 
of  an  indigenous  learning.  The  single  judges  finally  set  up  there 
were  learned,  if  trained  at  all  to  the  law,  in  the  Italian  jurispru- 
dence. Germans  had  long  studied  in  Italy ;  and  the  Roman  law 
of  the  Italian  schools  was  taught  from  their  foundation  in  the 


ROMAN   LAW   IN   EUROPE.  125 

German  universities.  All  theological  students  were  obliged  to 
study  the  Roman  and  canonical  law  as  part  of  their  regular  pro- 
fessional training ;  for  it  formed  the  basis  of  the  administration 
of  the  spiritual  courts,  which  had  so  long  stood  alongside  the 
courts  of  ordinary  law  in  every  part  of  Europe. 

The  law  that  was  received  was  not  the  Corpus  Juris  of  Jus- 
tinian, but  the  common  law  of  Italy,  founded  upon  the  Roman, 
the  canon,  and  the  Lombard  law.  "  The  Corpus  Juris  was  terra 
incognita  to  the  German  jurists  of  the  period  of  the -reception." 
They  brought  in,  "not  the  Pandects,  but  the  Usus  modemus 
Pandectarum  of  the  Italian  lawyers."  The  new  law  was  not,  of 
course,  accepted  whole  and  in  bulk.  It  entered,  in  Germany  as 
elsewhere,  as  l  subsidiary '  law,  not  as  the  native  law  of  the  land. 
It  nevertheless  received  everywhere  a  decided  preference  in  the 
courts.  While  accepting  Roman  legal  rules  as  prima  fade  con- 
clusive of  the  rights  of  a  suitor,  they  imposed  upon  those  who 
alleged  established  local  usage  in  opposition  to  it  the  necessity  of 
furnishing  conclusive  proof  of  the  existence  and  acceptance  of  such 
usage  as  law.  Roman  law,  in  brief,  they  accepted  on  its  own 
authority,  Germanic  custom  only  on  the  authority  of  indubitable 
circumstantial  testimony. 

The  outcome  was  that,  speaking  most  generally,  the 
Roman  law  prevailed  in  the  field  of  procedure,  in  the  field  of 
criminal  law,  in  the  field  of  contract,  and  in  the  field  of  the  law 
of  inheritance ;  while  German  law  persisted  in  respect  of  the 
law  of  real  property,  in  respect  of  family  law,  and  wherever  law 
was  to  be  drawn  on  to  the  recognition  of  new  relationships, 
like  those  of  association  and  incorporation,  in  a  changing 
society. 

In  England,  a  strong  native  jurisprudence  kept  the  for- 
eign law  out.  Always  held  off  from  the  rest  of  Europe  by  the 
sea,  a  separate  system  of  law  was  made  possible  for  her,  no  less 
than  an  independent  government.  The  royal  power  was  able  to 
make  of  the  favored  island  a  compact  kingdom  :  and  men  of  the 
masterful  Plautagenet  blood  gave  it  a  centralized  administration 
of  justice  such  as  no  other  European  state  was  able  to  obtain 
while  yet  it  was  in  its  early  formative  stage  of  growth.  English 


126  KOMAN    LAW    IN    EUKOPE. 

judges  put  together  a  consistent  English  law,  and  there  was  no 
need  for  a  foreign  jurisprudence. 

And  yet  the  Roman  law  was  not  wholly  excluded.  The 
Komans  had  governed  Britain  four  hundred  years,  bending  the 
province  to  the  purposes  of  their  administration  with  their  usual 
thoroughness.  We  know  that  Papinian,  the  greatest  of  Rome's 
jurists,  himself  administered  the  law  in  Britain,  and  we  have 
every  reason  to  believe  that  its  promulgation  there  was  thorough, 
its  rootage  full  four  hundred  years  deep.  It  can  hardly  be  that 
the  Saxons  wholly  eradicated  it.  We  know  that  many  Roman 
municipalities  on  the  island  survived  all  conquests  :  and  we  know 
that  the  priests  of  the  Church  of  Rome  early  took  back  to  Eng- 
lished Britain  conceptions  steeped  in  Roman  jurisprudence.  Bede 
testifies  that  the  Saxon  laws  were  codified  under  the  auspices  of 
the  clergy  and  that  Roman  codification  was  the  model.  We  have 
seen  that  Roman  law  was  studied  in  England  almost  as  early  as 
in  mediaeval  Italy  herself,  the  study  being  continued  without 
serious  break  for  more  than  three  centuries  (page  117)  ;  and  the 
works  of  the  earliest  English  legal  text-writers,  such  as  Glanvil, 
Bracton,  and  the  author  of  the  Fleta,  abound  in  tokens  of  a  close 
familiarity  with  the  laws  of  the  imperial  codes,  are  full  of  their 
very  phraseology  indeed.  The  so-called  laws  of  Henry  I.  are 
said  by  competent  legal  scholars  to  consist,  to  the  extent  of  fully 
one-half  their  content,  of  precepts  borrowed  from  Rome.  Through 
the  ecclesiastical  courts,  which  down  to  the  middle  of  the  present 
century  administered  upon  all  estates  in  England,  and  upon  all 
trusts ;  through  the  Court  of  Chancery,  whence  has  issued  the 
system  of  English  equity,  and  which  was  presided  over  in  its 
formative  period  by  the  great  ecclesiastics  who  were  the  first 
chancellors,  afterwards  by  great  lawyers,  such  as  Lord  Hardwicke 
and  Lord  Thurlow,  deeply  versed  in  the  civil  law  of  Rome  and 
apt  to  draw  suggestion  and  even  concrete  rule  from  it;  and 
through  the  Admiralty  Courts,  always  controlled  by  the  rules  of 
the  Civil  Law,  England  has  drawn  directly  or  indirectly  from 
Roman  sources,  in  supplement  of  her  own  indigenous  customs ; 
and  not  many  portions  of  her  law  have  escaped  being  in  some 
degree  marked  by  the  same  influences  that  have  moulded  the  law 
of  the  rest  of  Europe.  Her  borrowings,  nevertheless,  have  been 


ROMAN   LAW    IN    EUROPE.  127 

of  form  and  method  rather  than  of  substance,  and  the  great  bulk 
of  her  law  is  her  own. 


RKPKKSKNTATIVK  AUTHORITIES. 

,  ( Jcorge  B.,  Civilization  during  the  Middle  Ages,  New  York,  1894. 
AY///,/,,/-,  II.,  Deutsche  Rechtsgeschichte.     2  vols.,  1887-1892. 
A'/V/fv/,  The  Holy  Roman  Empire.     New  York,  1911. 
f'/iurr/i.  K.  \V.,  The  Beginning  of  the  Middle  Ages.     (Series  of  Epochs 

of  Mod,  m  //As-/™-//.)     London,  1910. 
t  '///•///>•.  A.  M.,  History  of  the  Roman  Empire  from  the  Death  of  Theo- 

dosius  the  Great  to  the  Coronation  of  Charles  the  Great,  395-800. 

1875. 
/>itrui/,  Victor,  Histoire  du  Moyen   Age,  depuis  la  chute  de  1'Empire 

d'Occident  jusqu'au  milieu  du  XVe  Siecle.     1  vol.     Paris.     8th  ed., 

1  >:.').     Trans,  by  G.  B.  Adams,  New  York,  1891. 
/•,'///»  rtnn,  E.,  Introduction  to  the  Study  of  the  Middle  Ages,  Boston,  1889, 

and  Mediaeval  Europe,  Boston,  1894. 
Freeman,  E.  A.,  Historical  Essays.     Series  I. 

,  E.,  Decline  and  Fall  of  the  Roman  Empire.     Smith's  ed.     New 

York,  1880. 
/,   F.,  Lectures  on  the  History  of  Civilization  in  France  and  in 

Europe. 
Hullo  in,   II.,  View  of   the  State   of    Europe  during  the   Middle  Ages, 

•  •specially  Chapter  II.,  which  contains  what  is  possibly  the  best  brief 

account  in  English  of  the  Feudal  System. 
Heeren,  A.  II.  L.,  Manual  of  the  History  of  the  Political   System  of 

Europe  and  Its  Colonies.     Oxford,  1834. 
Kingsley,  Chas.,  The  Roman  and  the  Teuton. 
M  Hi-Hill  a  if,  T.  B.,  Essay  on  Ranke's  History  of  the  Popes. 
Mil  man,  H.  H.,  History  of  Latin  Christianity.     8  vols.     New  York. 
Umun,  Ch.,  Europe,  476-918,  New  York  and  London,  1893. 
Ranke,  L.  <ron,  History  of  the  Popes. 

Schroeder,  R.,  Lehrbuch  der  deutschen  Rechtsgeschichte.     3d  ed.,  1898. 
Sheppard,  J.  G.,  The  Fall  of  Rome  and  the  Rise  of  the  New  Nationali- 
ties.    1  vol.     London  and  New  York,  1861. 

Concerning  the  introduction  of  Roman  law  into  modern  European  legal 
systems,  see,  besides  authorities  mentioned  at  end  of  Chapter  II.  — 

Jenks,  Edward,  Law  and  Politics  in  the  Middle  Ages,  2nd  ed.     London. 
1913-1917. 


128  ROMAN   LAW    IN    EUROPE. 

Sohm,  Rudolf,  Die  deutsche  Rechtsentwickelung  und  die  Codifications- 

frage,  in  Griinhut's  Zeitschrift  filr  <I<is  Prirat  utxl  (h'ft'ottHclie,  Recht 

der  Gegenwart,  I.,  245-280. 
Stein,  Lorenz,  Das  Wesen  der  Reception  und  die  Reception  des  griech- 

ischen  Rechts  im  romischen  Recht,  in  Griinhut,  I.  722  ff. 
Stephen,  Sir  James,  Lectures  on  the  History  of  France,  especially  lectures 

I.-V.,  inclusive. 

Tomkins,  F.  J.,  and  Jencken,  H.  D.,  Modern  Roman  Law. 
Vinogradoff,  P.,  Roman  Law  in  Mediaeval  Europe.     London  and  New 

York,  1909. 
Waitz,  Georg,  Deutsche  Verfassungsgeschichte,  8  vols.      The   classical 

work  on  early  Germanic  institutions  and  the  development  of  the 

German  constitution. 


VII. 
THE  GOVERNMENT  OF  FRANCE. 


The  Growth  of  the  French  Monarchy.  — The  full  political 
significance  of  the  history  of  France  can  be  appreciated  only  by 
those  who  keep  in  mind  the  chief  phenomena  of  the  widening 
monarchy,  the  successive  steps  by  which  the  Dukes  of  France, 
the  capable  Capets,  extended  their  power  and  the  name  of  their 
duchy  over  the  whole  of  the  great  territory  which  was  to  be  in- 
herited by  Louis  XIV.  The  course  of  French  history  is  from 
complex  to  simple.  In  the  days  of  Hugh  Capet  'France '  was  the 
name  of  only  a  single  duchy  centering  in  Paris,  of  but  one  of  a 
great  number  of  feudal  lordships  equally  great,  equally  vigorous, 
equally  wedded  to  independence.  The  duchy's  advantage  lay  in 
the  fact  that  her  dukes  had  been  chosen  for  leadership  and  that 
they  were  capable  of  leadership,  rather  than  in  the  possession 
of  preponderant  strength  or  superior  resources.  To  the  west  of 
her  lay  the  solid  mass  of  Normandy;  to  the  north  lay  the  terri- 
tories of  the  Counts  of  Flanders  and  Vermandois,  and  to  the  east 
the  territory  of  the  Count  of  Champagne ;  southward  lay  the  great 
duchies  of  Burgundy  and  Aquitaine,  beyond  them  the  lands  of 
Toulouse;  alongside  of  Normandy,  Anjou  and  Brittany  stretched 
their  independent  length  to  the  west.  And  these  were  only  the 
greater  feudal  sovereignties.  Within  and  about  them  lay  other 
districts  not  a  few  with  masters  ready  to  assert  privileges  without 
number  in  contradiction  of  all  central  rule.  The  early  history 
of  France  is  the  history  of  a  duchy  striving  to  become  a  kingdom. 
'France'  holds  a  good  strategic  position,  and  fortune  has  made 
her  dukes  titular  kings  over  their  feudal  neighbors,  but  still  she 
is  in  reality  only  one  among  many  duchies. 

By  slow  and  steady  steps,  nevertheless,  a  work  of  unifica- 
129 


130  THE  GOVERNMENT  OF  FRANCE. 

tion  is  wrought  out  by  the  Capets.  In  every  direction  they  stretch 
out  from  their  central  duchy  of  France  their  hand  of  power  and 
of  intrigue  and  draw  the  pieces  of  feudalized  Neustria  together 
into  a  compact  mass.  The  work  is  thoroughly  done,  moreover,  at 
almost  every  stage.  Out  of  populations  as  heterogeneous  as  any  in 
Europe  they  construct  a  nation  singularly  homogeneous;  out  of 
feudal  lordships  as  strong,  as  numerous,  as  heady,  and  as  stiffly 
separate  as  any  other  equal  territory  could  show,  they  construct 
a  single  kingdom  more  centralized  and  compacted  than  any  other 
in  Europe.  The  processes  of  these  remarkable  achievements  give 
to  the  history  of  the  French  monarchy  its  distinctive  political 
significance :  the  means  which  the  Capets  devised  for  solidifying, 
and,  after  its  solidification,  for  enlarging  and  effectuating  their 
power,  furnish  some  of  the  most  suggestive  illustrative  material 
anywhere  to  be  found  for  the  general  history  of  government. 

Perfection  of  the  Feudal  System  in  France.  —  The  feudal 
system  worked  its  most  perfect  work  in  France.  The  opportuni- 
ties of  feudalism  there  were  great.  Neustria,  the  western,  Gal- 
lic half  of  the  great  Frankish  kingdom,  was  early  separated  from 
Austrasia,  the  eastern,  Germanic  half  (pages  114-115),  and  its 
separateness  proved  the  cause  of  its  disintegration.  Burgundy, 
Brittany,  and  Aquitaine  sprang  to  the  possession  of  unchecked 
independent  power  round  about  it;  the  Normans  thrust  their 
huge  wedge  of  territory  into  it ;  battle  after  battle  between  those 
who  contended  for  the  possession  of  the  pieces  of  the  great  em- 
pire which  Charles  the  Great  had  swept  together  first  decimated 
and  finally  quite  annihilated  the  sturdy  class  of  Frankish  freemen 
whose  liberties  had  stood  in  the  way  of  local  feudal  absolutism; 
privilege  grew  in  the  hands  of  feudal  lords  while  prerogative 
declined  in  the  hands  of  those  who  sought  to  be  kings ;  those 
who  possessed  privilege  built  for  themselves  impregnable  castles 
behind  whose  walls  they  could  securely  retain  it :  —  and  feudal- 
ism had  its  heyday  in  France. 

It  is  reckoned  that  in  Hugh  Capet's  day  the  "  free  and  noble  pop- 
ulation" of  the  country  out  of  which  modern  France  was  to  be  made 
numbered  "  about  a  million  of  souls,  living  on  and  taking  their  names 
from  about  seventy  thousand  separate  fiefs  or  properties :  of  these  fiefs 
about  three  thousand  carried  titles  with  them.  Of  these  again,  no  less 


THE  GOVERNMENT  OF  FRANCE.  131 

than  a  hundred, — some  reckon  as  many  as  a  hundred  and  fifty,  —  were 
sovereign  states,  greater  or  smaller,  whose  lords  could  coin  money,  levy 
taxes,  make  laws,  administer  their  own  justice."  J  Of  these  one  hundred, 
however,  only  some  eight  or  ten  were  really  powerful  states. 

Materials  of  the  Monarchy.  —  Such  were  the  materials 
out  of  which  the  Capets  had  to  build  up  their  monarchy.  It  was 
their  task  to  undo  the  work  of  feudalism.  Nor  were  these  the 
only  materials  that  they  had  to  handle  in  the  difficult  under- 
taking. There  were  other  privileges  besides  those  of  the  feudal 
barons  which  it  was  necessary  to  destroy  or  subordinate  before 
they  could  see  their  power  compact  and  undisputed. 

Local  Self-government.  —  Notwithstanding  the  fact  that 
in  most  districts  of  the  divided  territory  the  power  that  ruled 
him  was  brought  close  to  every  man's  door  in  the  person  of  his 
feudal  lord  and  master,  there  were  many  corners  of  the  system 
which  sheltered  vigorous  local  self-government.  The  period  of 
the  greatest  vitality  of  the  feudal  system  was,  indeed,  the  only 
period  of  effectual  local  self-government  that  France  has  ever  yet 
known.  The  eventual  supremacy  of  the  Crown,  which  snatched 
their  power  from  the  barons,  also  destroyed  local  self-government, 
which  the  barons  had  in  many  cases  suffered  to  grow;  and  neither 
the  Revolution  nor  any  of  the  governments  which  have  succeeded 
the  Revolution  has  yet  restored  it  to  complete  life.  Local  liber- 
ties were  taking  form  and  acquiring  vigor  during  the  very  period 
in  which  the  monarchical  power  was  making  its  way  towards 
supremacy;  and  it  was  by  these  local  liberties  that  the  kings 
found  themselves  faced  when  their  initial  struggle  with  feudal- 
ism was  over.  It  was  their  final  task  to  destroy  them  by  per- 
fecting centralized  administrative  organization. 

Rural  Communes.  —  While  feudalism  was  in  its  creative 
period,  while  the  forces  were  at  work,  that  is,  which  were  shap- 
ing the  relations  of  classes  and  of  authorities  to  each  other,  it  was 
not  uncommon  for  feudal  lords  to  grant  charters  to  the  rural 
communes  lying  within  their  demesnes.  In  and  after  the  twelfth 
century  these  charters  became  very  numerous.  They  permitted 
a  separate  organic  structure  to  the  communes,  regulated  the  ad- 
mission of  persons  to  communal  privileges,  laid  down  rules  for 

1  G.  W.  Kitchin,  History  of  France,  Vol.  I.,  p.  186. 


132  THE  GOVERNMENT  OF  FRANCE. 

the  administration  of  property  in  the  commune,  set  forth  feudal 
rights  and  duties,  prescribed  the  corvees,  etc.  "Everywhere  a 
general  assembly  of  the  inhabitants  directly  regulated  affairs," 
delegating  executive  functions  to  communal  officers,  who  acted 
separately,  each  in  the  function  with  which  he  was  specially 
charged.  These  officers  convoked  the  general  assembly  of  the 
people  for  every  new  decision  that  it  became  necessary  to  take 
with  reference  to  communal  affairs.  The  principal  affairs  within 
the  jurisdiction  of  the  assembly  were,  "the  administration  of 
communal  property,  which  in  that  period  was  very  important, 
police,  and  the  collection  of  the  taxes  both  royal  and  local."1 

In  the  administration  of  justice,  also,  the  Middle  Ages 
witnessed  in  France  not  a  few  features  of  popular  privilege.  The 
peasant  as  well  as  the  nobleman  had  the  right  to  be  tried  by  his 
peers,  —  by  persons  of  his  own  origin  and  station.  In  the  courts 
of  the  feudal  barons  the  vassals  were  present  to  act  as  judges, 
much  as  the  freemen  were  present  in  the  English  county  courts 
(sees.  836,  942). 

Liberties  of  Towns :  the  Roman  Municipalities.  —  The 
privileges  of  self-direction  granted  to  the  rural  communes,  how- 
ever, were  privileges  granted,  so  to  say,  inside  vassalage:  the 
members  of  the  communes  were  not  freed  from  their  constant 
feudal  duties.  Many  towns,  on  the  contrary,  acquired  and  main- 
tained a  substantial  independence.  When  the  earliest  Frankish 
kings  failed  in  their  efforts  to  establish  a  power  in  Gaul  as  strong 
and  as  whole  as  the  Roman  power  had  been,  and  the  Frankish 
dominion  fell  apart  into  fragments  whose  only  connection  was  a 
nominal  subordination  to  a  central  throne,  there  were  others 
besides  the  great  landowners  to  avail  themselves  of  the  oppor- 
tunity to  set  up  independent  sovereign  powers  of  their  own.  The 
Franks,  as  we  have  seen,  had  found  many  Roman  cities  in  Gaul, 
und,  not  at  first  taking  kindly  to  town  life,  had  simply  conquered 
them  and  then  let  them  be  (page  101).  In  these,  consequently, 
the  old  Roman  organization  had  endured,  freed  from  Roman  dic- 
tation. The  Franks  who  entered  them  later  took  character  from 
them  almost  as  much  as  they  gave  character  to  them.  Germanic 
principles  of  moot-government  and  individual  freedom  entered, 

1  H.  de  Ferron,  Institutions  Municipales  et  Provinciales  Comparees,  p.  3- 


THE  GOVERNMENT  OF  FRANCE.  133 

0 

to  a  certain  extent,  like  a  new  life-blood  into  the  Roman  forms, 
and  compact,  spirited,  aggressive,  disciplined  communities  were 
formed  which  were  quick  to  lay  hold  of  large  privileges  of  self- 
rule,  and  even  to  assume  semi-baronial  control  of  the  lands  lying 
about  them,  in  the  days  when  independent  powers  were  to  be 
had  for  the  seizing.  The  organization  which  Roman  influences 
had  bequeathed  to  these  towns  was  oligarchical,  Aristocratic :  the 
governing  power  rested  with  close  corporations,  with  councils 
(curias)  which  were  cooptative,  filling  their  own  vacancies.  But 
forces  presently  appeared  in  them  which  worked  effectually  for 
democracy.  The  Christian  Church,  as  well  as  the  barbarian 
Teuton,  took  possession  of  Gaul :  the  greater  towns  became  the 
seats  of  bishops ;  and  the  bishops  threw  their  weight  on  the  side 
of  the  commons  against  both  the  counts  outside  the  towns  and  the 
oligarchs  inside.  Only  so  could  the  magnates  of  the  Church  es- 
tablish themselves  in  real  power.  In  most  cases  the  ecclesiastics 
and  their  restless  allies,  the  commons,  won  in  the  contest  for 
supremacy,  and  democracy  was  established. 

The  Italian  towns,  with  their  'consuls'  and  their  other  imitations  of  the 
old  Roman  republican  constitution,  are  perhaps  the  best  examples  of  this 

renaissance  of  democracy. 

« 

The  Non-Roman  Municipalities.  —  These  Roman  towns, 
however,  were  to  be  found  for  the  most  part  only  in  the  south 
and  along  the  Rhine.  North  of  the  Loire,  as  the  Franks  took 
gradually  to  city  life,  there  sprang  up  other  towns,  of  Germanic 
origin  and  character ;  and  these  were  not  slow  to  agitate  for  grants 
of  special  privileges  from  their  baronial  masters.  In  very  large 
numbers  they  obtained  charters,  —  charters,  however,  which  were 
to  give  them  a  connection  with  the  feudal  system  about  them 
which  the  towns  of  the  south,  antedating  feudalism,  did  not  for 
some  time  possess.  They  were  given  substantial  privileges  of 
self-government,  but  they  were  not  severed  from  baronial  control. 
They  conducted  their  affairs,  on  the  contrary,  under  charters 
in  which  the  relative  (customary)  rights  of  both  seigneur  and 
burgher  were  definitely  ascertained,  by  which  seigneurial  author- 
ity as  well  as  burgher  privilege  was  fully  recognized,  and  under 
which,  moreover,  the  authority  of  the  seigneur  was  actively  ex- 


134  THE  GOVERNMENT  OF  FRANCE. 

V 

ercised  through  the  instrumentality  of  a  Pr6vot,  the  lord's  servant 
and  representative  in  city  affairs. 

This,  the  more  secure  form  of  municipal  self-government, 
because  the  form  which  was  most  naturally  integrated  with  the 
political  system  about  it,  —  a  form,  moreover,  which  very  natu- 
rally connected  itself,  mediately,  with  the  supreme  seigneurial 
authority  of  the  king,  —  became  in  course  of  time  the  prevalent, 
indeed  the  almost  universal,  type  in  France.  The  'preVotal ' 
town  is  the  normal  town  down  to  the  end  of  the  fifteenth  century. 

Not  all  of  this  development  was  accomplished  peacefully 
or  by  the  complaisance  of  the  barons.  Many  cities  were  driven 
to  defend  their  privileges  against  the  baronage  by  force  of 
arms;  some,  unable  to  stand  out  unaided  against  feudal  aggres- 
sions, were  preserved  from  discomfiture  only  by  succor  from  the 
king,  whose  interest  it  served  to  use  the  power  of  the  townsmen 
to  check  the  insolent  might  of  the  feudal  lords;  others,  again, 
were  repeatedly  constrained  to  buy  in  hard  cash  from  neighbor 
barons  a  grudging  tolerance  for  their  modest  immunities.  The 
kings  profited  very  shrewdly  by  the  liberties  of  the  towns,  draw- 
ing the  townspeople  very  closely  about  themselves  in  the  struggles 
of  royal  prerogative  against  baronial  privilege.  As  supreme 
lords  in  France,  they  assumed  to  make  special  grants  of  munici- 
pal citizenship :  they  made  frequent  gifts  of  bourgeoisie  to  dis- 
affected vassals  of  the  barons,  —  gifts  so  frequently  made,  indeed, 
that  there  grew  up  a  special  class  of  royal  townsmen,  a  special 
bourgeoisie  du  roi. 

The  Towns  and  the  Crusades.  —  Not  the  least  important 
element  in  the  growth  of  separate  town  privileges  was  the  influence  of 
the  crusades  upon  the  power  of  the  nobility.  When  the  full  fervor  of 
crusading  was  upon  France,  her  feudal  nobility  were  ready  to  give  up 
anything  at  home  if  by  giving  it  up  they  might  be  enabled  to  go  to  the 
holy  wars,  to  the  prosecution  of  which  Mother  Church  was  so  warmly 
urging  them.  Their  great  need  was  money;  money  the  towns  had;  and 
for  money  they  bought  privileges  from  departing  crusaders.  Very  often, 
too,  their  one-time  lords  never  returned  from  Palestine  —  never  came 
back  to  resume  the  powers  so  hastily  and  eagerly  bartered  away  before 
their  departure.  When  they  did  return  they  returned  impoverished,  and 
in  no  condition  of  fortune  to  compete  with  those  who  had  husbanded 
their  resources  at  home.  On  every  hand  opportunities  were  made  for 
the  perpetuation  of  town  privileges. 


THE  GOVERNMENT  OF  FRANCE. 


135 


Municipal  Privileges.  —  The  privileges  extorted  or  bought 
by  the  sturdy  townspeople  were,  to  speak  in  general  terms,  the 
right  to  make  all  the  laws  which  concerned  only  themselves,  the 
right  to  administer  their  own  justice,  the  right  to  raise  all  taxes 
(as  well  those  demanded  by  king  or  baron  as  those  which  they 
imposed  upon  themselves  for  their  own  purposes)  in  their  own 
way,  and  the  right  to  discipline  themselves  with  police  of  their 
own  appointing.  Such  villages  as  contrived  to  obtain  separate 
privileges  could  of  course  obtain  none  so  extensive  as  these. 
They  often  had  to  seek  justice  before  baronial  rather  than  before 
their  own  tribunals;  they  could  by  no  means  always  choose  their 
own  way  of  paying  unjust  charges ;  they  had  often  to  submit  to 
rough  discipline  at  the  hands  of  prince's  retainers;  oftentimes 
the  most  they  could  secure  for  themselves  was  a  right  of  self- 
direction  in  petty  matters  in  which  no  one  else  was  immediately 
interested. 

The  administrative  functions  exercised  by  the  towns  have  been 
thus  summed  up :  the  administration  of  communal  property,  the  mainte- 
nance of  streets  and  roads,  the  construction  of  public  edifices,  the  support 
and  direction  of  schools,  and  the  assessment  and  collection  of  all  taxes.1 

Forms  of  Town  Government.  —  The  forms  of  self-govern- 
ment in  the  towns  varied  infinitely  in  detail,  according  to  place 
and  circumstance,  but  the  general  outline  was  almost  everywhere 
the  same.  Often  there  were  two  assemblies  which  took  part  in 
the  direction  of  municipal  affairs,  an  Assembly  of  Notables  and 
a  General  Assembly  of  citizens.  These  two  bodies  did  not  stand 
to  each  other  in  the  relation  of  two  houses  of  a  single  legislature; 
they  were  separate  not  only,  but  had  also  distinct  functions. 
The  popular  body  elected  the  magistrates ;  the  select  body  advised 
the  magistrates ;  the  one  was  a  legislative,  the  other  an  executive, 
council.  More  commonly,  however,  there  was  but  one  assembly, 
the  general  assembly  of  citizens,  which  elected  the  magistrates, 
exercised  a  critical  supervision  over  them,  and  passed  upon  all 
important  municipal  affairs.  The  magistracy  generally  consisted 
of  a  mayor  and  aldermen  who  acted  jointly  as  the  executive  of 
the  city  (its  corps  de  ville),  the  mayor  in  most  cases  being  only 

1  Ferron,  p.  8. 


136  THE  GOVERNMENT  OF  FRANCE. 

the  president,  never  the  '  chief  executive/  of  the  corporation,  and 
mayor  and  aldermen  alike  being  equal  in  rank  and  in  responsi- 
bility in  exercising  their  corporate  functions. 

Decay  or  Destruction  of  Municipal  Self-government.  - 
From  this  democratic  model  there  were,  of  course,  in  almost  all 
cases,  frequent  departures,  quite  after  the  manner  formulated  by 
Aristotle  (page  31).  Oligarchy  and  tyranny  both  crept  in,  time 
and  again ;  nowhere  did  local  liberties  permanently  preserve  their 
first  vigor;  everywhere  real  self-government  sooner  or  later  suc- 
cumbed to  adverse  circumstances,  crushed  in  very  many  cases  by 
the  overwhelming  weight  of  the  royal  power.  Generally  such 
changes  were  wrought  rather  by  stress  of  disaster  from  without 
than  because  of  degeneracy  within :  and  in  very  few  cases  indeed 
did  local  liberty  die  before  the  community  which  had  sought  to 
maintain  it  had  given  proof  of  a  capital  capacity  for  self-govern- 
ment. The  independence  of  the  cities  died  hard  and  has  left 
glorious  memories  behind  it. 

Pays  d'Etats.  —  Early  times  saw  self-government  in  the 
provinces  also.  Many  a  feudal  province  had  had  its  own  'Es- 
tates/ its  own  triple  assembly,  that  is,  of  nobles,  clergy,  and 
burghers,  which  met  to  discuss  and  in  large  part,  no  doubt,  to 
direct  provincial  affairs.  The  provinces  of  old  France,  thirty-six 
in  number,  represented  separate  feudal  entities,  much  as  the 
English  counties  did  (sec.  836).  The  towns,  on  the  other  hand, 
in  the  central  and  northern  portions  of  France  at  least,  repre- 
sented nothing  but  grants  of  privilege,  were  nothing  but  com- 
munities which  had  been  given  a  special  and  exceptional  place 
in  the  feudal  order.  The  assemblies  of  the  provinces,  accord- 
ingly, were  not  primary  or  democratic  like  those  of  the  towns, 
but  were  made  up  by  ' estates,' —  models  for  the  States-General 
which  appeared  in  1302  (page  139). 

The  provincial  Estates  were  probably  in  their  origin  nothing  else 
than  normal  feudal  councils,  made  up,  as  they  were,  of  representatives 
of  all  who  possessed  corporate  or  individual  privileges,  whose  judgments 
and  advice  feudal  dukes  and  counts  found  it  redound  to  their  greater  peace 
and  welfare  to  hear  and  heed. 

In  several  of  the  provinces,  as,  notably,  in  Languedoc 
and  Brittany,  these  provincial  Estates  continued  to  meet  and  w 


THE  GOVERNMENT  OF  FRANCE.  137 

exercise  considerable  functions  down  to  the  time  of  the  Revolu- 
tion. Such  provinces  came  to  be  distinguished  from  the  others 
as  pays  d'6tats  (provinces  having  Estates),  and  it  is  largely  from 
the  privileges  of  their  assemblies  that  we  argue  the  general  nature 
of  the  powers  possessed  by  those  which  had  passed  out  of  exis- 
tence before  history  could  catch  a  glimpse  of  them.  We  see  the 
Estates  of  the  pays  d'&ats  clearly  only  after  the  royal  power  has 
bound  together  all  the  provinces  alike  in  a  stringent  system  of 
centralization;  they  sit  only  at  the  king's  call;  their  resolutions 
must  fee  taken  in  the  presence  of  the  king's  provincial  officers 
and  must  await  the  regal  sanction ;  they  live  by  the  royal  favoi 
and  must  in  all  things  yield  to  the  royal  will.  Nevertheless  their 
privileges  were  still  so  substantial  as  to  make  the  pays  d'&ats  the 
envy  of  all  the  rest  of  France.  They  bought  of  the  Crown  the 
right  to  collect  the  taxes  demanded  by  the  central  government; 
they  retained  to  the  last  the  right  to  tax  themselves  for  the  ex- 
penses of  local  administration  and  to  undertake  and  carry  through 
entirely  without  supervision  the  extensive  improvements  in  roads 
and  watercourses  to  which  the  local  patriotism  bred  by  local  self- 
government  inclined  them.  Restricted  though  their  sphere  was, 
they  moved  freely  within  it,  and  gave  to  their  provinces  a  vital- 
ity and  a  prosperity  such  as  the  rest  of  France,  administered,  as 
it  was,  exclusively  from  Paris,  speedily  and  utterly  lost. 

Territorial  Development  of  the  Monarchy.  —  The  process 
of  the  organic  development  of  the  monarchy  which  centred  in  the 
duchy  of  France  began  with  territorial  expansion  and  consoli- 
dation. For  eight  centuries  that  expansion  and  consolidation 
went  steadily  on ;  but  its  successful  completion  was  assured  be- 
fore the  extinction  of  the  first,  the  direct,  line  of  Capets  in  1328. 
Before  that  date  Philip  Augustus  had  wrung  Normandy  from 
England  and  had  added  Vermandois,  Auvergne,  Touraine,  Anjou, 
Maine,  and  Poitou  to  the  dominions  of  his  Crown,  and  his  succes- 
sors had  so  well  carried  forward  the  work  of  expansion  that  before 
the  Valois  branch  came  into  the  succession  only  Flanders,  Bur- 
gundy, and  Brittany  broke  the  solidity  of  the  French  power  in 
the  north,  and  only  Aquitaine,  still  England's  fief,  cut  Franca 
off  from  her  wide  territories  in  the  southeast.  It  had  been  the 
mission  of  the  direct  line  of  the  Capets  to  lay  broadly  and  irre- 


138  THE  GOVERNMENT  OF  FRANCE. 

movably  the  foundations  of  French  unity  and  nationality,  and 
they  had  accomplished  that  mission.  They  gave  to  their  mon- 
archy the  momentum  which  was  afterwards  to  carry  it  into  full 
supremacy  over  Brittany,  Aquitaine,  and  Burgundy,  over  the 
Rhone  valley,  and  over  the  lands  which  separated  her  from  the 
Rhine. 

The  Crusades  and  the  Monarchy.  — The  monarchy,  even  more 
than  the  towns  (page  134),  profited  by  the  effects  of  the  crusades  on  the 
feudal  nobility.  So  great  was  the  loss  of  life  among  the  nobles,  so  great 
was  their  loss  of  fortune,  that  they  fell  an  easy  prey  to  the  encroaching 
monarchy.  During  the  first  crusades  the  French  kings  stayed  at  home 
and  reaped  the  advantages  which  the  nobles  lost ;  during  the  last  crusades, 
the  kings  were  strong  enough  themselves  to  leave  home  and  indulge  in  the 
holy  warfare  in  the  East,  without  too  great  apprehension  as  to  what  might 
happen  to  the  royal  power  in  their  absence. 

Institutional  Growth.  —  Of  course  along  with  territorial 
expansion  there  went  institutional  growth :  and  this  growth  in- 
volved in  large  part  the  destruction  of  local  liberties.  The  amal- 
gamation of  France  into  a  single,  veritable  kingdom  was  vastly 
more  fatal  to  local  self-government  than  the  anarchy  and  confu- 
sion of  feudal  times  had  been.  The  cities  could  cope  with  neigh- 
bor lords;  and  during  the  period  of  contest  between  king  and 
barons  they  could  count  oftentimes  upon  assistance  from  the  king : 
his  interests,  like  theirs,  lay  in  the  direction  of  checking  baronial 
power.  But  when  the  feudal  lords  were  no  longer  to  be  feared, 
the  towns  in  their  turn  felt  the  jealousy  of  the  king;  and  against 
his  overwhelming  power,  when  once  it  was  established,  they 
dared  not  raise  their  hands.  The  ancient  provinces,  too,  had  in 
the  earlier  days  found  ways  of  bringing  local  lords  into  their 
Estates,  in  which  the  right  of  the  burghers  to  have  a  voice  in  the 
government  was  recognized  (sec.  368).  But  they  could  no  more 
resist  the  centralization  determined  upon  by  a  king  triumphant 
over  all  feudal  rivals  than  the  towns  could.  In  the  end  the  pro- 
vincial assemblies,  where  they  managed  to  exist  at  all  in  the  face 
of  the  growing  power  of  the  Crown,  were,  like  all  other  indepen- 
dent authorities  of  the  later  time,  sadly  curtailed  in  privilege, 
and  at  the  last  almost  entirely  lost  heart  and  life. 

The  States-General.  —  At  one  time,  indeed,  it  seemed  as 


THE  GOYKKNMKNT  OF  FRANCE.  139 

if  the  nation,  in  being  drawn  close  about  the  throne,  was  to  be 
given  a  life  of  its  own  in  a  national  parliament.  Philip  the  Fair 
(1285-1314),  bent  upon  making  good  his  authority  against  the 
interference  of  the  Pope  in  certain  matters,  bethought  himself 
of  calling  representatives  of  the  nation  to  his  support.  The 
kings  of  France  had  already  often  taken  the  advice  upon  public 
affairs  of  the  baronage  or  of  the  clergy,  each  of  which  orders  had 
a  corporate  existence  and  organization  of  its  own,  and  therefore 
possessed  means  of  influential  advising:  but  Philip  called  in  the 
burghers  of  the  towns  also  and  constituted  (1302)  that  States- 
General  (Etats-G6n6raux)  in  which  for  the  first  time  in  French 
history  that  'third  estate '  of  the  Commons  appears  which  in 
later  times  was  to  thrust  both  clergy  and  nobles  out  of  power  and 
itself  rule  supreme  as  'the  people.* 

Character  of  the  States-General.  —  The  first  States-Gen- 
eral, summoned  by  Philip  the  Fair,  reminds  one  not  a  little  of 
the  parliament  called  together  in  England  in  1295  by  Edward  I. 
(sees.  848,  850).  Apparently  France  was  about  to  have  a  parlia- 
ment such  as  England's  became,  a  representative  body,  speaking, 
and  at  the  end  of  every  important  contest  bringing  to  pass,  the 
will  of  the  nation.  But  for  France  this  first  promise  was  not  ful- 
filled. During  three  centuries,  the  fourteenth,  fifteenth,  and 
sixteenth  (1302-1614),  it  was  the  pleasure  of  the  French  monarch 
to  keep  alive,  at  first  by  frequent,  and  later  by  occcasional  sum- 
mons, this  assemblage  of  the  three  Estates.  This  was  the  period 
during  which  feudal  privileges  were  giving  way  before  the  royal 
prerogative,  and  it  was  often  convenient  to  have  the  formal  sanc- 
tion of  the  Estates  at  the  back  of  acts  of  sovereignty  on  the  part 
of  the  Crown.  But  after  the  full  establishment  of  the  regal  power 
the  countenance  of  the  Estates  was  no  longer  needed,  and  was 
no  longer  asked.  The  States-General  never,  moreover,  even  in 
the  period  of  their  greatest  activity,  became  a  legislative  au- 
thority. For  one  thing,  they  had  not  the  organization  proper, 
not  to  say  necessary,  for  the  exercise  of  power.  The  three  Es- 
tates, the  Nobility,  the  Clergy,  and  the  Commons  (Tiers  Etat), 
deliberated  apart  from  each  other  as  separate  bodies;  and  each 
submitted  its  own  list  of  grievances  and  suggestions  to  the  king. 
They  acted  often  in  harmony,  but  never  in  union  j  their  only 


140  THE  GOVERNMENT  OF  FRANCE. 

common  meeting  was  the  first  of  each  session,  when  they  all 
three  assembled  in  the  same  hall  to  hear  a  formal  opening  speech 
From  the  throne.  They  never  acquired  the  right  to  be  consulted 
with  reference  to  that  cardinal  affair  of  politics,  taxation;  they 
aever  gained  the  right  to  sit  independently  of  royal  summons. 
They  were  encouraged  to  submit  what  suggestions  they  chose  to 
the  government  concerning  the  administration  of  the  kingdom ; 
and,  as  a  matter  of  fact,  their  counsels  were  often  heeded  by  the 
king.  But  they  never  got  beyond  advising :  never  won  the  right 
to  expect  that  their  advice  would  be  taken.  Their  sessions  did, 
however,  so  long  as  they  continued,  contribute  to  keep  alive  a 
serviceable  form  of  self-government  which  at  least  held  the  nation 
within  sight  of  substantial  liberties;  and  which,  above  all,  secured 
national  recognition  for  that  'third  estate,'  the  people,  whose 
sturdiest  members,  the  burghers  of  the  towns,  were  real  represen- 
tatives of  local  political  life. 

Administrative  Development.  —  Of  course  along  with  the 
territorial  expansion  of  the  monarchy  by  annexation,  absorption, 
and  conquest  there  went  also  great  administrative  developments. 
As  the  monarchy  grew,  the  instrumentalities  of  government  grew 
along  with  it :  possession  and  control  advanced  hand  in  hand. 

Growth  of  the  Central  Administration.  —  In  the  earlier 
periods  of  the  Capetian  rule  a  Feudal  Court  and  certain  house- 
hold officers  constituted  a  sufficient  machinery  for  the  central 
administration.  There  was  a  Chancellor,  who  was  the  king's 
private  secretary  and  keeper  of  both  the  public  and  the  private 
records  of  the  court;  a  Chamberlain,  who  was  superintendent  of 
the  household;  a  Seneschal,  who  presided  in  the  king's  name 
and  stead  in  the  Feudal  Court,  and  who  represented  the  king  in 
the  direct  administration  of  justice;  a  Great  Butler,  who  was 
manager  of  the  royal  property  and  revenues ;  and  a  Constable,  who 
was  commander  of  the  forces.  The  Feudal  Court,  composed  of 
the  chief  feudatories  of  the  Crown,  exercised  the  functions  of  a 
tribunal  of  justice  in  suits  between  tenants  in  capite,  besides  the 
functions  of  a  taxing  body  and  of  an  administrative  council. 

The  Council  of  State.  —  So  long  as  '  France '  was  only  a 
duchy  and  the  real  territory  of  the  Crown  no  wider  than  the  im- 


THE   GOVERNMENT  OF   FRANCE.  141 

mediate  domain  of  the  Capetian  dukes,  the  weight  of  administra- 
tion fell  upon  the  officers  of  the  household,  and  the  Feudal  Court 
was  of  no  continuous  importance.  But  as  France  grew,  the 
household  officers  declined  and  the  Feudal  Court  advanced  in 
power  and  importance.  As  the  functions  of  the  Court  increased 
and  the  Court  became  a  directing  Council,  the  Council  more  and 
more  tended  to  fall  apart  into  committees,  into  distinct  sec- 
tions, having  each  its  own  particular  part  of  the  duties  once 
common  to  the  whole  body  to  perform.  The  earlier  Councils 
exercised  without  distinction  functions  political,  judicial,  and 
financial,  and  their  differentiation,  though  hurried  forward  by 
monarchs  like  Louis  IX.,  was  not  given  definite  completeness 
until  1302  (the  year  of  the  first  States-General)  when,  by  an 
ordinance  of  Philip  the  Fair,  their  political  functions  were 
assigned  to  the  body  which  was  to  remain  the  Council,  their 
judicial  functions  to  a  body  which  was  to  bear  the  ancient  name 
of  parliament  (and  which  we  know  as  the  Parliament  of  Paris), 
their  financial  functions  to  a  Chamber  of  Accounts.  Alongside 
of  the  Chamber  of  Accounts  there  sprang  up  a  Chamber  of 
Subsidies  which  concerned  itself  with  taxation.  Into  these 
bodies,  whose  activity  increased  from  year  to  year,  the  old  offi- 
cials of  the  household  were  speedily  absorbed,  the  Great  Butler, 
for  instance,  becoming  merely  the  president  of  the  Chamber  of 
Accounts. 

The  Parliament  of  Paris.  —  The  judicial  section  of  the  Council 
of  State  consisted  at  first  like  the  other  sections,  like  the  whole  Council 
indeed,  of  feudatories  of  the  Crown,  as  well  as  of  administrative  experts 
gradually  introduced.  More  and  more,  however,  this  chief  tribunal  tended 
to  become  exclusively  a  body  of  technical  officials,  of  trained  jurists  and 
experienced  lawyers,  the  law  officers  and  advisers  of  the  Crown. 

Growth  of  Centralized  Local  Administration:  Louis  IX.  — 

This  expansion  of  the  central  organs  of  administration  meant 
that  the  royal  government  was  entering  more  and  more  exten- 
sively into  the  management  of  affairs  in  the  provinces,  that 
local  administration  was  being  centralized.  This  extension  of 
centralized  local  administration  may  be  said  to  have  begun  in 
earnest  under  Louis  IX.  Louis  IX.  did  more  than  any  of  his 
predecessors  to  strengthen  the  grip  of  the  monarchy  upon  its 


142  THE   GOVERNMENT   OF   FRANCE. 

dominions  by  means  of  direct  instrumentalities  of  government. 
He  was  a  man  able  to  see  justice  and  to  do  it,  to  fear  God  and  yet 
not  fear  the  Church,  to  conquer  men  not  less  by  uprightness  of 
character  than  by  force  of  will  and  of  arms ;  and  his  character 
established  the  monarchy  in  its  power.  By  combined  strength 
and  even-handedness  he  bore  down  all  baronial  opposition ;  the 
barons  subjected  to  his  will,  he  sent  royal  commissioners  through- 
out the  realm  to  discover  where  things  were  going  amiss  and 
where  men  needed  that  the  king  should  interfere;  he  established 
the  right  of  appeal  to  his  own  courts,  even  from  the  courts  of  the 
barons,  thus  making  the  Parliament  of  Paris  the  centre  of  the 
judicial  system  of  the  country;  he  forced  limitations  of  power 
upon  the  feudal  courts ;  he  forbade  and  in  part  prevented  judicial 
combats  and  private  warfare.  He  drew  the  administration  of  the 
law  in  France  together  into  a  centralized  system  by  means  of 
royal  Baillis  and  Pr6vdts,  whom  he  subordinated  to  the  Parliament 
of  Paris. 

Steps  of  Centralization.  —  It  is  not,  of  course,  to  be  understood 
that  Louis'  work  was  to  any  considerable  extent  a  work  of  creation :  it  was 
not,  but  rather  a  work  of  adaptation,  expansion,  systematization.  The 
system  which  he  perfected  had  been  slowly  growing  under  his  predecessors. 
A  bailli  was,  in  the  Middle  Ages,  a  very  common  officer,  representing 
king  or  seigneur,  as  the  case  might  be,  administering  justice  in  his  name, 
commanding  his  men-at-arms,  managing  the  finances,  caring,  indeed,  for 
every  detail  of  administration.  At  first,  it  is  said,  "all  of  judicial,  finan- 
cial, and  military  administration  was  in  his  hands."  It  was  an  old  system 
of  royal  baillis,  set  over  districts  known  as  bailliages  (bailliwicks),  that 
Philip  Augustus  instituted  (1190)  and  Louis  IX.  extended  and  regulated, 
keeping  an  eye  to  it,  the  while,  that  the  baillis  should  be  made  to  feel  their 
dependence  upon  the  Crown  so  constantly  that  they  should  per  force  re- 
main officials  and  not  dream  of  following  the  example  of  dukes  and 
counts  and  becoming  independent  feudal  lords  on  their  own  accounts. 

Personal  Government :  Louis  XIV.  —  Such  measures  naturally 
tended  to  subordinate  all  local  magnates  to  the  king.  By  the  policy  of 
Louis  XIV.  this  tendency  was  completed :  the  whole  of  the  nobility  of 
France  were,  so  to  say,  merged  in  the  person  and  court  of  the  king. 
Louis  took  care  to  have  it  understood  that  no  man  who  remained  upon 
his  estate,  who  did  not  dance  constant  attendance  upon  his  majesty,  the 
king,  at  his  court,  to  add  to  its  brilliancy  and  servility,  might  expect  any- 
thing but  disfavor  and  loss.  He  made  of  the  great  landed  nobility  a  court 
nobility,  turning  men  from  interest  in  their  tenants  and  their  estates  to 


THE  GOVERNMENT  OF  FRANCE.  143 

interest  in  court  intrigue  alone.  He  drew  all  men  of  rank  and  ambition 
to  himself,  merged  them  in  himself,  and  left  nothing  between  the  mon- 
archy and  the  masses  whereby  the  terrible  impact  of  the  great  revolution 
which  was  to  come  might  be  broken. 

The  Completed  Centralization :  the  Intendant.  —  Finally 
came  the  completed  centralization  which  followed  the  days  of 
Richelieu:  the  system  whose  central  figure  was  the  Intendant,  a 
direct  appointee  and  agent  of  the  king  and  absolute  ruler  within 
the  province;  and  whose  lesser  figures  were  the  sub-delegates  of 
the  Intendant,  rulers  in  every  district  and  commune.  The  rule  of 
these  agents  of  the  Grown  almost  totally  extinguished  the  separate 
privileges  of  the  elected  magistrates  of  the  towns  and  of  the  other 
units  of  local  government.  In  many  places,  it  is  true,  the  people 
were  suffered  still  to  elect  their  magistrates  as  before;  but  the 
usurping  activities  of  the  Intendant  and  his  subordinates  speedily 
left  elected  magistrates  with  nothing  to  do.  In  other  cases  elec- 
tions ceased;  the  Crown  sold  the  local  offices  as  life  estates  to  any 
one  who  would  buy  them  for  cash. 

The  Province  was  a  military,  not  a  civil,  administrative  district. 
The  Provinces  were  grouped  into  Generalities,  of  which  there  were  in  al) 
thirty-two,  and  it  was  over  a  Generality  that  each  Intendant  ruled.  Ec- 
clesiastical administration  was  served  by  still  another  distinct  division  into 
Dioceses. 

Judicial  Centralization.  —  The  local  tribunals  of  justice  in 
like  manner  had  their  business  gradually  stolen  from  them.  The 
principle  of  appeal  established  by  Louis  IX.  at  length  worked  its 
perfect  work.  Every  case  in  which  any  interest  cared  for  from 
Paris  (and  what  interest  was  not?)  was  either  actually  or  by  pre- 
tence involved  was  '  evoked '  to  special  courts  set  up  by  royal 
commission.  No  detail  was  too  insignificant  to  come  within  the 
usurpations  of  the  king's  government. 

The  Royal  Council  and  the  Comptroller-General.  —  The 
Royal  Council  at  Paris  regulated,  by  'orders  in  council, '  every 
interest,  great  or  small,  in  the  whole  kingdom.  The  Comptroller- 
General,  acting  through  the  Intendants  and  their  sub-delegates, 
and  through  the  royal  tribunals,  managed  France.  Everybody's 
affairs  were  submitted  to  him,  and  through  him  to  the  Royal 
Council;  and  everybody  received  suggestions  from  Paris  touching 


144  THE  GOVERNMENT  OF  FRANCE. 

his  affairs.  No  labor  of  supervision  was  too  overwhelming  for 
the  central  government  to  undertake.  Interference  in  local  affairs, 
made  progressively  more  and  more  systematic,  more  and  more 
minute  and  inquisitive,  resulted,  of  course,  in  the  complete 
strangulation  of  local  government.  All  vitality  ran  to  the  veins 
of  the  central  organism,  and,  except  for  the  lingering  and  treas- 
ured privileges  of  the  pays  d'ttats,  and  for  here  and  there  a  per- 
sistent form  of  town  life,  France  lay  in  the  pigeon-holes  of  a 
bureau.  Tabula  rasa  had  been  made  of  the  historical  elements  of 
local  government. 

The  Spirit  of  the  Administration.  —  This  busy  supervision  of 
local  and  individual  interests  was  always  paternal  in  intent ;  and  the 
intentions  of  the  central  power  were  never  more  benevolent  than  just 
when  the  Revolution  was  beginning  to  draw  on  apace.  "The  royal  gov- 
ernment was  generally  willing  in  the  latter  half  of  the  eighteenth  century 
to  redress  a  given  case  of  abuse,  but  it  never  felt  itself  strong  enough,  or 
had  leisure  enough,  to  deal  with  the  general  source  from  which. the  par- 
ticular grievance  sprang."  l 

The  Revolution.  —  This  whole  fabric  of  government  went 
for  a  moment  to  pieces  in  the  storm  of  the  Revolution.  But  the 
revolutionists,  when  their  stupendous  work  of  destruction  had 
been  accomplished,  were  under  the  same  necessity  to  govern  that 
had  rested  upon  the  monarch  whom  they  had  dethroned  and  exe- 
cuted ;  and  they  very  soon  proved  themselves  unable  to  improve 
much  upon  the  old  patterns  of  government.  In  denial  of  the  in- 
defeasible sovereignty  of  the  king,  they  proclaimed,  with  huzzahs, 
the  absolute  sovereignty  of  the  people;  but  Assembly  and  Con- 
vention could  do  no  more  than  arrogate  all  power  to  themselves, 
as  the  people's  representatives,  and  seek  to  reign  in  the  king's 
stead  through  the  king's  old  instrumentalities.  They  gave  voice 
to  a  new  conception,  but  they  could  not  devise  a  new  frame  of 
administration.  The  result  was  confusion,  Committees,  the 
Terror,  and  —  Napoleon. 

The  Reconstruction  by  Napoleon.  —  The  Revolution  re- 
moved all  the  foundations  of  French  politics,  but  scarcely  any  of 
the  foundations  of  French  administration.  The  interests  of  the 

1  John  Morley,  Miscellanies,  Vol.  II.  (last  Macmillan  edition),  essay  on 
u  Turgot,"  p.  138. 


THE  GOVERNMENT  OF  FRANCE.  145 

royal  administration  had  centred  in  the  general  government, 
rather  than  in  its  local  parts,  —  in  patronage,  in  the  aggregate 
national  power  and  prosperity,  in  finance.  The  true  interests 
of  republican  government,  on  the  other  hand,  centre  in  thorough 
local  development:  republican  work,  properly  done,  ought  to 
tend  to  broaden  and  diversify  administrative  work  by  diversi- 
fying political  life  and  quickening  self-directive  administrative 
agencies.  But  this  the  leaders  of  the  Revolution  neither  saw  nor 
could  do;  and  Napoleon,  whom  they  created,  of  course  made  no 
effort  to  serve  republican  development. 

Napoleon  simply  reorganized  despotism.  In  doing  so, 
however,  he  did  scarcely  more  than  carry  into  effect  the  principal 
purposes  of  the  Constituent  Assembly.  The  legislation  of  that 
Assembly  had  sought,  not  to  shatter  centralization,  but  to  sim- 
plify and  systematize  it;  and  it  was  this  purpose  that  Napoleon 
carried  out.  For  the  Convention  and  Assembly,  as  representa- 
tives of  the  nation's  sovereignty,  he  substituted  himself;  and 
then  he  proceeded  to  give  to  centralization  a  perfected  machinery. 
The  Convention  and  Assembly  had  endeavored  to  direct  affairs 
through  Committees,  Commissions,  Councils,  Directories,  — 
through  executive  boards,  in  a  word.  For  such  instrumentalities 
Napoleon  substituted  single  officers  as  depositaries  of  the  several 
distinct  functions  of  administration;  though  he  was  content  to 
associate  with  these  officers  advisory  councils,  whose  advice  they 
might  ask,  but  should  take  only  on  their  own  individual  responsi- 
bility. "  'To  give  advice  is  the  province  of  several,  to  administer, 
that  of  individuals,'  says  the  maxim  which  he  engraved  on 
the  pediment  of  the  administrative  arrangements  of  France,"  to 
remain  there  to  the  present  day.  The  Constituent  Assembly, 
willing  to  obliterate  the  old  Provinces  of  France,  with  their 
memories  of  feudal  privilege,  and  the  Generalities,  with  their 
ancient  savor  of  absolutism,  had  redivided  the  country,  as  sym- 
metrically as  possible,  into  eighty-nine  Departments;  and  it  was 
upon  this  territorial  framework  that  Napoleon  superimposed  a 
machinery  of  Prefects  and  sub-prefects,  modelled,  with  simplifi- 
cations and  improvements  of  method,  upon  the  system  of  Intend- 
ants  and  delegates  of  the  old  regime.  This  he  accomplished  in 


146  THE  GOVERNMENT  OF  FRANCE. 

that  celebrated  "  Constitution  of  the  Year  VIII."  which  still  lies 
almost  undisturbed  at  the  foundation  of  French  administration. 
The  Revolution  had  resulted  in  imparting  to  centralization  what 
it  never  had  had  before:  namely,  assured  order  and  effective 
system.  * 

Advances  towards  Liberal  Institutions.  —  Nevertheless, 
the  Revolution  had  asserted  a  new  principle  of  rule,  and  every 
change  of  government  which  has  taken  place  in  France  since  the 
Revolution  has  pushed  her,  however  violently,  towards  genuine 
representative  institutions  and  real  republicanism.  Louis  XVIII., 
though  he  persisted  in  holding  to  the  divine  right  of  kings  and  in 
retaining  for  himself  and  his  ministers  an  exclusive  right  of  in- 
itiative in  legislation,  assented  to  the  establishment  of  a  parlia- 
ment of  two  houses  and  conceded  to  it  the  responsibility  of  the 
ministers.  Louis  Philippe  abandoned  the  delusion  of  the  'divine 
right,'  acknowledged  the  sovereignty  of  the  people,  and  shared 
with  the  chambers  the  right  of  initiative  in  legislation.  With 
Napoleon  III.  came  reaction  and  a  return  to  a  system  like  that 
of  the  first  Napoleon;  but  even  Napoleon  III.  had  consented  to 
return  to  the  practice  of  ministerial  responsibility  before  the 
war  with  Germany  swept  him  from  his  throne  and  gave  birth  to 
the  present  Republic. 

The  Third  Republic.  —  Sedan  having  fallen  (September  2), 
and  the  Emperor  having  been  taken  prisoner,  the  imperial  gov- 
ernment went  to  pieces,  and  on  Sunday  the  fourth  of  September, 
1870,  the  leaders  of  uneasy  Paris  proclaimed  the  Third  Republic, 
Gambetta  being  their  mouthpiece.  A  provisional  government 
was  at  once  set  up  by  the  republican  leaders,  under  the  name  of 
the  National  Defence.  The  men  who  constituted  it  were  fully 
aware  that  they  legally  represented  nobody  but  themselves,  that 
they  had  usurped  power  in  the  face  of  a  national  crisis  and  were 
acting  by  sufferance,  and  it  was  their  purpose  to  call  together  a 
national  assembly  at  once,  an  assembly  chosen  by  universal  suf- 
frage, in  order  that  the  people's  representatives  might  construct 

1  Since  the  war  between  France  and  Germany  in  1870-'!,  the  Depart- 
ments of  France  have  numbered  only  eighty-six,  the  loss  of  Alsace  and  Lor- 
raine having  subtracted  three  Departments.  There  is  also  the  territory  of 
Belfort. 


THE  GOVERNMENT  OF  FRANCE.  147 

in  more  formal  fashion  a  government  of  their  own.  Immediate 
preparations  were  accordingly  made  for  an  election.  But  the 
rapid  and  fatal  progress  of  the  war  prevented.  Germany  pressed 
her  victories  to  the  utmost.  It  was  not  possible  to  hold  an  as- 
sembly at  all  until  the  end  had  come  and  it  had  become  necessary 
to  decide  terms  of  submission  and  peace. 

The  National  Assembly  of  1871-1876. —On  the  8th  of 
February,  1871,  a  National  Assembly  was  elected,  and  on  the 
13th  of  the  same  month  it  convened  for  the  transaction  of  its 
business  at  Bordeaux.  It  turned  out  not  to  be  a  republican  body. 
Of  its  seven  hundred  and  sixty-eight  members  a  majority  were 
found  to  be  in  favor  of  a  monarchical  form  of  government.  Had 
that  majority  been  united,  it  could  have  undone  the  work  of  Gam- 
betta  and  his  colleagues  and  have  set  a  prince  once  more  upon 
the  throne  of  France.  But  it  could  not  unite.  Some,  the  'Le- 
gitimists,' wished  to  see  the  old  house  of  Bourbon  restored; 
others  were  partisans  of  the  house  of  Orleans ;  a  few  were  Im- 
perialists and  wanted  the  empire  of  the  Bonapartes  set  up  again. 
The  first  business  of  the  Assembly  was  easily  disposed  of,  hu- 
miliating though  it  was.  Peace  was  concluded  with  Germany 
upon  her  own  terms,  only  Belfort  being  saved  by  the  diplomacy 
of  Thiers.  The  matter  of  real  difficulty  was  the  establishment 
and  maintenance  of  a  government.  For  the  time  being,  and  until 
something  better  and  more  permanent  could  be  agreed  upon,  the 
name  and  the  forms  of  the  Republic  were  kept.  M.  GreVy,  a 
moderate  Republican,  was  made  President  of  the  Assembly;  M. 
Thiers,  a  moderate  Orleanist,  was  chosen  'Chief  of  the  Executive 
Power '  of  the  Republic  (a  title  presently  changed  to  President); 
and  the  Assembly  itself  undertook  to  direct  affairs,  through  the 
President  as  its  responsible  agent. 

A  Balance  of  Parties.  —  For  five  years  the  Assembly  main- 
tained its  authority  and  hold  upon  affairs.  It  had  been  given  no 
formal  commission  at  the  elections  what  it  should  do.  It  had 
been  clearly  enough  understood,  of  course,  that  it  was  first  of  all 
to  come  to  terms  of  peace  with  Germany ;  but  no  one  knew  what 
the  voters  had  expected  it  would  do  after  that.  It  had  neither 
been  commissioned  to  form  a  government  nor  to  conduct  one,  and 
yet  it  certainly  had  not  been  forbidden  to  do  either.  The  Repul* 


148          THE  GOVERNMENT  OF  FRANCE. 

licans,  finding  themselves  in  a  minority,  urged  that  the  Assembly 
had  no  authority  to  make  a  permanent  constitution,  and  demanded 
that  it  should  be  dissolved  and  the  people  asked  to  choose  a  new 
assembly  explicitly  authorized  to  frame  a  government.  The 
monarchical  majority,  however,  feared  that  they  should  not  have 
such  another  chance  as  the  present  to  frame  a  government  to  their 
own  liking,  and  claimed  that  as  a  National  Assembly  elected 
without  instructions  the  existing  body  had  practically  received 
sovereign  powers  from  the  electors  and  might  do  as  it  pleased, 
watching,  as  prudent  men  should,  the  while,  the  temper  of  the 
country.  The  real  difficulty  was  to  hit  upon  a  practicable  pro- 
gramme, agreeable  to  all  factions  of  the  monarchists.  The 
interests  of  the  factions  proved  in  fact  irreconcilable  and  it  soon 
became  evident  to  conservative  and  observant  men  of  every  opin- 
ion that  the  Republic  must  be  left  standing.  Thiers  declared 
very  frankly  that  he  would  have  preferred  a  constitutional  mon- 
archy ;  but  he  believed  a  republic  to  be  the  real  preference  of  the 
country,  and  he  knew  that  to  attempt  the  restoration  of  any  one 
of  the  royal  houses  would  be  in  the  highest  degree  dangerous  and 
revolutionary  under  the  circumstances.  "The  Republic  exists," 
he  said;  "it  is  the  legal  government  of  the  country;  to  wish  for 
anything  else  would  be  a  revolution."  The  monarchists  had  at 
all  events  lost  their  opportunity  by  waiting ;  opinion  ran  steadily 
against  them,  and  it  was  presently  too  late. 

The  Framing  of  the  Constitution.  —  The  more  statesman- 
like and  practical  men  amongst  them  saw  at  last  very  clearly  that 
they  must  frame  a  republican  government  or  none  at  all ;  but  they 
determined  to  do  as  little  as  possible  towards  making  the  consti- 
tution they  should  frame  definitive  and  difficult  of  alteration. 
They  would  make  the  forms  of  the  new  government  such  that  it 
could  at  any  rate  be  readily  changed,  and  that  without  radical 
amendment,  into  a  constitutional  monarchy.  They  gave  it,  ac- 
cordingly, as  simple  and  rudimentary  a  frame  as  possible,  leav- 
ing almost  every  detail,  and  even  some  of  the  main  arrangements 
of  its  administration,  to  be  settled  by  ordinary  legislation;  and 
they  took  care  to  make  constitutional  change  as  easy  and  informal 
a  matter  as  might  be  without  risking  immediate  instability.  For 
fiour  years  they  experimented  with  the  government  they  had; 


THE  GOVERNMENT  OF  FRANCE.  149 

defining  the  powers  of  the  President  and  their  own  relations  to 
him  more  than  once,  as  if  tentatively,  and  so  as  it  were  testing 
and  shaping  the  arrangements  to  which  they  should  ultimately 
give  permanency.  About  a  month  after  its  convening  the  As- 
sembly removed  from  Bordeaux  to  Versailles.  While  the  Com- 
mune ruled  Paris  the  leaders  of  the  Assembly  could  of  course 
think  of  nothing  but  the  measures  necessary  to  establish  order 
and  the  authority  of  the  government.  When  order  had  been  re- 
stored, it  was  still  necessary  to  handle  the  finances  and  arrange 
many  disordered  matters  of  administration.  What  with  the  diffi- 
culties of  governing  the  country  and  the  even  greater  difficulty  of 
quieting  its  own  factions,  it  proved  impracticable  for  the  Assem- 
bly to  enter  upon  the  work  of  constitution-making  before  1873. 
The  work  was  not  completed  before  the  closing  months  of  1875. 

Meanwhile  (August  31,  1871),  by  the  same  act  which  conferred 
upon  him  his  new  title  of  President  of  the  Republic,  the  Assembly  had 
defined  its  relations  to  Thiers,  constituting  him  its  responsible  minister, 
with  the  right  to  appoint  the  other  executive  officers  of  the  government  and 
to  address  the  Assembly  upon  all  matters  of  public  business,  and  giving 
him  a  term  of  office  which  should  last  until  it  should  have  finished  its  own 
business.  In  March,  1873,  thinking  him  too  dominant  in  its  counsels,  it 
had  sought  to  exclude  the  President  from  its  debates,  except  upon  extraor- 
dinary occasions,  and  to  put  a  responsible  cabinet  of  ministers  between 
itself  and  the  head  of  the  government.  Two  months  later  it  forced  M. 
Thiers  to  resign  and  elected  Marshal  MacMahon  to  exercise  the  office  of 
President  in  his  stead,  fixing  his  term  at  seven  years  and  leaving  the  scope 
of  his  authority  and  of  his  relations  to  the  legislature  to  be  determined  by 
the  definitive  constitutional  laws  it  was  about  to  frame.  It  had  experi- 
mented long  enough  at  governing  and  at  the  making  and  modifying  of 
Executives,  and  was  ready,  as  it  no  doubt  saw  the  country  was,  for  its 
final  task. 

Scope  and  Character  of  the  Constitutional  and  Organic 
Laws  of  1875.  —  In  framing  the  laws  which  were  to  give  shape  to 
the  new  government  the  Assembly  distinguished  between  those 
which  were  to  be  'constitutional '  and  subject  to  change  only  by 
special  processes  of  amendment,  and  those  which,  though  'or- 
ganic,' were  to  be  left  subject  to  change  by  the  ordinary  processes 
of  statutory  enactment  by  the  two  Houses  of  the  Legislature. 
The  'constitutional '  laws,  passed  February  24th  and  25th  and  July 


150  THE  GOVERNMENT  OF  FRANCE. 

16th,  1875,  respectively,  dealt  in  the  simplest  possible  manner 
with  the  larger  features  of  the  new  government's  structure  and 
operation:  the  election  and  general  powers  of  the  President;  the 
division  of  the  National  Assembly  into  two  houses,  a  Senate  and 
Chamber  of  Deputies ;  the  general  powers  and  mutual  relations  of 
the  two  Houses,  the  President's  relation  to  them,  and  the  general 
rules  which  should  control  their  assembling  and  adjournment. 
Two  'organic'  statutes,  bearing  date  August  2nd  and  November 
30th,  1875,  respectively,  provided  for  the  election  of  Senators  and 
Deputies.  The  only  radical  amendment  of  the 'constitutional7 
laws  since  then  effected  was  made  in  August,  1884,  when  almost 
the  whole  of  the  constitutional  law  regarding  the  composition  and 
powers  of  the  Senate  was  repealed,  and  replaced  by  an  'organic ' 
law  (that  is,  an  ordinary  statute)  which  introduced  a  number  of 
important  changes,  and  left  the  organization  and  authority  of  the 
Senate  henceforth  open  to  the  freest  legislative  alteration,  likely 
to  be  checked  only  by  the  circumstance  that  the  Senate  must  itself 
assent  to  the  changes  made.  The  'organic'  laws  of  1875  with 
regard  to  elections  to  the  Chamber  of  Deputies  have  been  several 
times  amended. 

The  Sovereignty  of  the  Chambers.  —  There  can  be  no  doubt 
that  the  National  Assembly  had  invested  Marshal  MacMahon 
with  the  presidential  power,  upon  the  resignation  of  M.  Thiers 
in  May,  1873,  with  a  distinct  purpose.  MacMahon  was  at  once  a 
popular  and  patriotic  soldier  and  a  partisan  of  monarchy.  It  was 
hoped  that  he  might  keep  the  chief  executive  place  of  the  nation 
warm  for  some  sovereign  to  be  afterwards  agreed  upon  and  en- 
throned,—  not  necessarily  by  coup  d'ttat:  perhaps  by  a  mere 
modification  of  the  constitutional  laws  with  regard  to  the  person 
and  powers  of  the  head  of  the  state.  Sovereignty,  nevertheless, 
passed  under  the  new  constitution  to  the  new  National  Assembly, 
the  Senate  and  Chamber  of  Deputies.  The  'constitutional '  laws 
of  1875  can  be  changed  at  will  by  the  legislature  which  they  called 
into  existence:  changed  by  the  simple  substitution  of  action  in 
joint  Assembly  for  the  ordinary  separate  action  in  two  houses. 
The  Senators  and  Deputies  have  but  to  unite  in  National  Assem- 
bly to  become  as  sovereign  as  the  Assembly  which  created  them 
(see  page  134).  They  are,  besides,  the  sole  judges  of  their  OWD 


THE  GOVKKNMKNT  OF  FRANCE.  151 

constitutional  powers.  No  courts  restrain  them.  France,  like 
England,  vests  in  her  parliament  a  complete  sovereignty  of  dis- 
cretion as  to  its  own  acts. 

The  principal  difference  between  the  two  cases  is,  that  the  English 
Parliament  may  exercise  all  its  powers  in  the  same  way,  by  the  ordinary 
procedure  of  enactment,  whether  it  changes  by  the  act  a  mere  detail  of 
the  common  law  or  a  chief  arrangement  of  the  constitution  of  the  realm, 
while  the  French  chambers  are  put  under  limitations  of  procedure  in 
respect  of  every  alteration  of  the  fundamental  law. 

The  constitutional  arrangements  thus  effected  have  this 
admirable  difference  from  all  other  previous  constitutions  France 
has  had  since  the  Revolution :  they  do  not  pretend  to  constitute 
the  whole  body  of  her  fundamental  public  law.  They  exclude 
neither  precedent  nor  growth.  In  practice  even  the  precedents 
of  previous  constitutions  have  been  suffered  to  have  a  part  in  sup- 
plementing them.  So  much  of  former  constitutional  usage  as  in 
not  incompatible  with  the  laws  and  character  of  the  Republic  is 
regarded  as  still  in  force.  There  has  been  no  absolute  break 
with  the  past,  but  only  a  new  construction  on  old  foundations. 

The  Chamber  of  Deputies.  —  It  was  the  hope  of  the  consti- 
tution-makers of  1875  that  the  Senate  would  have  equal  weight 
in  affairs  with  the  Chamber  of  Deputies ;  but  that  hope  has  been 
disappointed.  Effective  power  has  fallen  from  the  first  to  the 
popular  chamber,  and  the  Senate  has  been  thrust  into  a  secondary 
role.  Of  the  choice  of  members  of  the  Chamber  of  Deputies,  the 
constitutional  laws  say  no  more  than  that  they  shall  be  elected 
by  universal  suffrage.  'Organic'  statute  law  has  organized  the 
Chamber  on  the  basis  of  one  deputy  to  every  one  hundred  thou- 
sand inhabitants.  Deputies  must  be  at  least  twenty-five  years  of 
age,  and  their  term,  unless  the  Chamber  be  sooner  dissolved,  is 
four  years.  The  eighty-six  Departments  into  which  the  country 
is  divided  are  the  basis  of  representation  in  the  Chamber,  as  in 
the  Senate  (page  153).  To  each  Department  is  assigned  a  certain 
number  of  deputies,  according  to  its  population;  every  Depart- 
ment, however,  whatever  its  population,  being  entitled  to  at  least 
three  representatives.  The  deputies  are  elected,  not  'at  large' 
for  the  whole  Department,  that  is,  on  a  general  ticket,  but  by 
districts,  as  members  of  our  federal  House  of  Representatives 


152  THE  GOVERNMENT  OF  FRANCE. 

are  chosen  in  the  States.  The  Arrondissements  serve  as  '  con- 
gressional districts/  as  we  should  call  them,1  —  and  this  method 
of  voting  is  accordingly  known  in  France  as  scrutin  d'arrondisse- 
ment  (ballot  by  arrondissement). 

This  was  the  original  arrangement  of  1875  ;  but  in  1885  the  system  of 
voting  for  deputies  in  each  Department  on  a  general  ticket,  as  we  vote 
for  presidential  electors  in  the  States,  was  introduced,  being  called  scrutin 
de  liste  (ballot  by  list).  It  was  adopted  at  the  suggestion  of  Gambetta, 
who  thought  that  a  system  of  general  tickets  would  give  his  party  a  freer 
sweep  of  popular  majorities.  In  1889,  however,  scrutin  &  arrondissement 
was  reestablished,  because  scrutin  de  liste  had  given  too  free  a  sweep  to 
the  popular  majorities  of  General  Boulanger. 

The  principal  colonies,  too,  are  entitled  to  representation  in 
the  Chamber.  Algiers  sends  five  deputies  ;  Cochin-China,  Guade- 
loupe, Guyana,  India,  Martinique,  Reunion,  and  Senegal  each 
send  one.  In  all,  there  are  six  hundred  and  two  deputies.  Elec- 
tions to  the  Chamber  do  not  take  place  at  regular  intervals  and 
on  fixed  dates  named  by  statute,  but  must  be  ordered  by  decree 
from  the  President  of  the  Eepublic  in  each  case.  The  law  directs, 
however,  that  the  President  must  order  an  election  within  sixty 
days,  or,  in  case  of  a  dissolution,  within  two  months  after  the 
expiration  of  a  term  of  the  Chamber ;  and  that  the  new  Chamber 
must  come  together  within  the  ten  days  following  the  election. 
At  least  twenty  days  must  separate  decree  and  day  of  election. 

Election  by  Majority.  —  The  law  governing  the  election  of 
Deputies  provides  against  choice  by  plurality  on  the  first  ballot ;  and  the 
result  is  unfortunate.  If  there  are  more  than  two  candidates  in  an  elec- 
toral district  (an  arrondissement^  an  election  on  the  first  ballot  is  possi- 
ble only  if  one  of  the  candidates  receives  an  absolute  majority  of  all  the 
votes  cast  not  only,  but  also  at  least  one-fourth  as  many  votes  as  there 
are  registered  voters  in  the  district.  If  no  one  receives  such  a  majority, 
another  vote  must  be  taken  two  weeks  later,  and  at  this  a  plurality  is 
sufficient  to  elect.  The  result  is,  that  the  multiplication  of  parties,  or 
rather  the  multiplication  of  groups  and  factions  within  the  larger  party 
lines,  from  which  France  naturally  suffers  overmuch,  is  directly  encour- 
aged. Rival  groups  are  tempted  to  show  their  strength  on  the  first  ballot 

1  Arrondissements  having  a  population  of  more  than  one  hundred  thou- 
sand people  are  divided  into  districts,  called  circonscriptions  —  one  for  each 
hundred  thousand  people  or  fraction  thereof. 


THE  GOVERNMENT  OF  FRANCE.  153 

in  an  election,  for  the  purpose  of  winning  a  place  or  exchanging  favor 
for  favor  in  the  second.  They  lose  nothing  by  failing  in  the  first  ;  they 
may  gain  concessions  or  he  more  regarded  another  time  by  showing  a 
little  strength  ;  and  rivalry  is  encouraged,  instead  of  consolidation.  France 
cannot  afford  to  foster  factions. 

The  Senate.  —  By  an  act  of  the  National  Assembly  passed 
August  14th,  1884,  almost  the  whole  of  the  constitutional  law  of 
February  24th,  1875,  relating  to  the  organization  of  the  Senate 
and  to  the  qualifications  and  election  of  senators  was  stripped  of 
its  '  constitutional '  character  and  became  an  ordinary  statute. 
Four  months  later  it  was  replaced  by  the  act  of  December  9th, 
1884.  In  all  that  respects  its  organization  and  in  much  that  re- 
spects its  powers  the  Senate  has  become  a  merely  statutory  body. 
So  far  as  the  '  constitutional '  laws  are  concerned,  it  might  be  con- 
stituted by  executive  appointment  or  by  lot.  By  statute  it  has 
been  made  to  consist  of  three  hundred  members  chosen  by  '  elec- 
toral colleges '  specially  constituted  for  the  purpose  in  the  several 
Departments  and  colonies,  and  the  term  of  senatorship  has  been 
fixed  at  nine  years.1  Forty  years  has  been  declared  the  minimum 
age  for  senators.  The  electoral  college  for  the  choice  of  senators 
is  composed  in  each  Department  of  the  deputies  from  the  Departs 
ment,  the  members  of  the  '  General  Council '  of  the  Department 
(page  169),  and  the  members  of  the  Councils  of  its  several  Arron- 
dissements  (page  171),  together  with  delegates  chosen  in  each 
Commune  by  the  Communal  Council,  varying  in  number  according 
to  the  numbers  of  the  Communal  Council.  One-third  of  the 
membership  of  the  Senate  is  renewed  every  three  years.  In  legal 
powers  the  Senate  is  in  all  respects  upon  a  footing  of  equality 
with  the  Chamber  of  Deputies,  except  that  money  bills  must 
originate  with  the  Chamber ;  and  though  it  has  in  practice  been 
conceded  that  the  Senate  may  amend  them,  it  has  been  doubted 
whether  it  can  of  strict  legal  right  add  to  money  bills.  In 
political  power,  of  course,  the  Chamber  overshadows  and  domi- 
nates the  Senate. 

1  Until  1884  the  law  provided  that  seventy-five  of  the  senatorial  seats 
were  to  be  filled  by  the  choice  of  the  Senate  itself,  and  held  for  life.  By 
virtue  of  the  constitutional  change  effected  in  1884,  all  vacancies  occurring 
in  these  life-memberships  are  now  filled  by  election  in  the  Departments,  as 
other  seats  are,  and  for  the  usual  term  of  nine  years. 


154  THE  GOVERNMENT  OF  FRANCE. 

Legislation  determines  from  time  to  time  how  many  senators  shall 
be  elected  by  each  Department.  According  to  the  present  distribution 
ten  are  returned  by  the  city  of  Paris,  which  itself  constitutes  most  of  the 
Department  of  the  Seine.  Other  Departments  vary  in  their  representation 
from  two  to  eight.  '  *  The  following  elect  one  senator  each  :  the  Territory 
of  Belfort,  the  three  Departments  of  Algeria,  the  four  colonies,  Marti- 
nique, Guadeloupe,  Reunion,  French  Indies."  (Law  of  Dec.  9,  1884.) 

In  Case  of  Usurpation.  —  In  case  the  Chambers  should  be  ille- 
gally dissolved  or  hindered  from  assembling,  the  General  Councils  of  the 
Departments  are  to  convene  without  delay  in  their  respective  places  of 
meeting  and  take  the  necessary  steps  for  preserving  order  and  quiet. 
Each  Council  is  to  choose  two  delegates  to  join  delegates  from  the  other 
Councils  in  assembling  at  the  place  whither  the  members  of  the  legal  gov- 
ernment and  the  regular  representatives  of  the  people  who  have  escaped 
the  tyranny  have  betaken  themselves.  The  extraordinary  assembly  thus 
brought  together  is  authorized  to  constitute  itself  for  business  when  half 
the  Departments  shall  be  represented ;  and  it  may  take  any  steps  that 
may  be  necessary  to  maintain  order,  administer  affairs,  and  establish  the 
independence  of  the  regular  Chambers.  It  is  dissolved,  ipso  facto,  so  soon 
as  the  regular  Chambers  can  come  together.  If  that  be  not  possible,  it  is 
to  order  a  general  election,  within  one  month  after  its  own  assembling. 

The  National  Assembly :  its  Functions.  —  The  Senate  and 
Chamber  of  Deputies  meet  together  in  joint  session  as  a  National 
Assembly  for  two  purposes :  the  revision  of  the  Constitution  and 
the  election  of  the  President  of  the  Republic.  Since  November, 
1879,  the  Houses  have  met  for  the  performance  of  their  ordinary 
legislative  functions  in  Paris ;  as  a  National  Assembly  they  meet 
in  Versailles,  apart  from  the  exciting  influences  of  the  great  capi- 
tal, which  has  led  so  many  assemblies  captive.  Whether  met  for 
the  election  of  the  President  or  for  the  revision  of  the  Constitu- 
tion, the  National  Assembly  must  do  the  single  thing  which  it 
has  convened  to  do  and  then  at  once  adjourn.  For  the  election 
of  the  President  there  are  clearly  determined  times  and  occa- 
sions :  whenever  the  office  of  President  falls  vacant,  whether  by 
the  death  or  resignation  of  the  President  or  by  the  expiration  of 
his  term. 

Revision  of  Constitution.  —  A  revision  of  the  Consti- 
tution may  take  place  whenever  the  two  Houses  are  agreed  that 
revision  is  necessary.  It  has,  thus  far,  been  customary  for  the 
Houses  to  consider  separately  beforehand  not  only  the  propriety 


THE  GOVERNMENT  OF  FRANCE.  155 

of  a  revision,  — that  standing  constitutional  rules  require,  — but 
also  the  particular  points  at  which  revision  is  necessary  and 
the  lines  on  which  it  should  proceed;  and  to  know  each  other's 
minds  on  those  important  heads  before  agreeing  to  a  National 
Assembly.  Alike  for  the  election  of  a  President  and  for  the 
adoption  of  constitutional  amendments  an  absolute  majority  vote 
of  the  united  Chambers  suffices. 

It  might  easily  happen  that  the  majority  in  one  of  the  Houses 
would  be  outvoted  on  joint  ballot  in  National  Assembly.  If  such  were 
likely  to  be  the  case,  that  majority  could  hardly  be  expected  to  con- 
sent readily  to  a  joint  session.  France  has,  not  two,  but  many  national 
parties,  and  it  is  not  always  possible  to  effect  the  same  combination  of 
factions  in  support  of  a  measure  in  both  the  Houses.  Cases  must  fre- 
quently arise  in  which  a  joint  vote  of  the  Houses  upon  a  particular  measure 
would  carry  with  it  defeat  to  the  policy  preferred  in  one  of  them.  And 
yet  there  is  no  legal  obstacle  to  prevent  the  majority  in  a  joint  session 
taking  up  and  deciding  questions  not  agreed  upon  beforehand.  The  only 
guarantee  is  good  faith. 

The  National  Assembly  is  the  most  completely  sovereign 
body  known  to  the  Constitution,  there  being  but  one  thing  it 
cannot  do  under  existing  law :  it  cannot  sit  as  long  as  it  pleases. 
Its  sessions  must  not  exceed  in  length  the  duration  of  an  ordi- 
nary legislative  session  (five  months).  It  is,  indeed,  forbidden, 
besides,  to  consider  the  repeal  of  republican  government;  but  it 
could  repeal  the  law  which  forbids  it. 

The  officers  of  the  Senate  act  as  officers  of  the  National  Assembly. 
They  consist  of  a  President,  four  Vice-Presidents,  six  Secretaries,  and 
three  Quaestors,  elected  for  one  year.  The  Chamber  of  Deputies  has  the 
same  offices,  with  the  addition  of  two  more  secretaryships. 

The  President  of  the  Republic.  —  The  president,  elected  by 
the  joint  ballot  of  the  Chambers,  is  titular  head  of  the  Executive 
of  France.  His  term  of  office  is  seven  years.  He  has  the  power 
of  appointing  and  removing  all  officers  of  the  public  service.  He 
has  no  veto  on  legislation,  but  he  is  authorized  to  demand  a  re- 
consideration of  any  measure  by  the  Houses.  He  can  adjourn  the 
Chambers  at  any  time  (though  not  more  than  twice  during  the 
same  session)  for  any  period  not  exceeding  one  month;  he  can 
close  a  regular  session  of  the  Houses  at  his  discretion  after  it  has 
continued  five  months,  and  an  extra  session  when  he  pleases;  and 


156  THE  GOVERNMENT  OF  FRANCE. 

he  can,  with  the  consent  of  the  Senate,  dissolve  the  Chamber  of 
Deputies,  even  before  the  expiration  of  the  five  months  of  its 
regular  session.  A  dissolution  of  the  Chamber  of  Deputies 
puts  an  end  also  to  the  sessions,  though  not  to  the  life,  of  the 
Senate  ;  for  it  cannot  act,  except  as  a  court,  without  the  Chamber. 
In  the  event  of  a  dissolution,  as  has  been  said,  the  President 
must  order  a  new  election  to  be  held  within  two  months  there- 
after, and  the  Houses  must  convene  within  ten  days  after  the 
election.  "  The  President  is  responsible  in  case  of  high  treason 
only,"  says  the  constitutional  law  of  February  25th,  1875 ;  and, 
in  case  of  high  treason  the  Chamber  must  impeach,  the  Senate 
try,  him.  As  a  matter  of  fact,  however,  four  Presidents  of  the 
Republic  have  been  forced  or  have  chosen  to  resign. 

The  only  limitation  put  by  law  upon  the  choice  of  the  National 
Assembly  in  electing  a  President  of  the  Republic  is,  that  no  one 
shall  be  chosen  President  who  is  a  member  of  any  family 
which  has  occupied  the  throne  of  France.  Members  of  these 
families  are  also  excluded  from  seats  in  either  the  Chamber  or  the 
Senate. 

Influence  of  President  and  Senate.  —  The  President  and 
Senate,  it  will  be  seen,  are  given  a  really  very  great  power  of 
control  over  the  Chamber  of  Deputies.  It  is  within  the  choice  of 
the  President  to  moderate  the  excesses  of  the  Chamber  by  return- 
ing bills  to  it  for  reconsideration,1  or  by  adjourning  it  during  a 
period  of  too  great  excitement ;  and  it  is  within  the  choice  of  the 
President  and  Senate  acting  together  to  appeal  from  its  decisions 
to  the  constituencies  by  a  dissolution.  The  Senate,  moreover, 
has  once  and  again  been  given  so  many  members  of  real  weight 
of  character  and  distinction  of  career  that  it  would  seem  to  have 
been  in  a  position  to  act  in  restraint  of  the  Chamber  with  firmness 
and  success.  But,  though  the  National  Assembly  which  elected 
Thiers  and  MacMahon  and  put  together  the  framework  of  the 
constitution  may  have  intended  the  new  government  to  be  in 
some  real  sense  a  government  by  the  President,  it  has  in  fact 
never  shown  the  President  in  any  degree  a  master  in  affairs  since 
the  days  of  MacMahon  himself.  MacMahon  exercised  the  power 

1  The  President  has  no  veto  power  and  while  the  Chamber  must  recon- 
sider bills  thus  returned  to  it,  it  may  at  once  repass  them  without  change. 


THE  GOVKKN.MKNT  OF  FRANCE.  157 

of  dissolution,  with  the  approval  of  the  Senate ;  but  the  change 
of  Deputies  only  taught  him  the  real  character  of  the  govern- 
ment, as  a  government  subject  to  the  will  of  the  Chamber.  Year 
by  year  the  subordinate  position  of  the  Senate  and  the  irregular 
but  always  irresistible  power  of  the  Chamber  have  become  more 
and  more  obvious. 

The  Cabinet  and  the  Council  of  Ministers.  —  A  Cabinet  of 
ministers  constitutes  a  link  between  the  President  and  the  Cham- 
bers :  and  the  political  functions  of  this  Cabinet  are  amongst  the 
central  features  of  government  in  France.  Both  the  Cabinet  and 
the  Council  consist  of  the  same  persons ;  but  the  Cabinet  is  a 
political  body  exclusively  and  is  presided  over  by  the  Premier, 
while  the  Council  has  administrative  functions  and  is  presided 
over  by  the  President.  The  distinction  illustrates  pointedly  the 
double  capacity  of  the  ministers. 

The  Ministries.  —  There  are  now  fourteen  ministers  :  the 
Minister  of  Justice,  rilling  the  office  filled  before  the  Revolution 
by  the  Chancellor ;  the  Minister  of  Finance,  who  has  taken  the 
place  of  the  Comptroller-General  of  ante-revolutionary  days 
(page  143) ;  the  Minister  of  War,  who  acts  as  head  of  the  adminis- 
trative department  created  in  the  time  of  Mazarin  (1644) ;  the 
Minister  of  Marine ;  the  Minister  of  Colonies ;  the  Minister 
of  Foreign  Affairs  (1644) ;  the  Minister  of  the  Interior,  an  office 
created  by  the  Constituent  Assembly  in  1791,  by  a  consolidation 
of  the  pre-revolutionary  offices  of  Comptroller-General  and  Minis- 
ter of  the  Royal  Household,  except  so  far  as  the  functions  of 
the  Comptroller-General  were  financial  and  bestowed  upon  the 
Minister  of  Finance;  the  Minister  of  Public  Instruction  (1848) 
and  the  Fine  Arts;  the  Minister  of  Public  Works  and  Transporta- 
tion; the  Minister  of  Agriculture  (an  office  created  in  1812,  but 
afterwards  abolished,  to  be  revived  in  1828-30) ;  the  Minister 
of  Trade  and  .Industry ;  the  Minister  of  Labor;  the  Minister  of 
Supplies,  and  the  Minister  of  Munitions. 

The  Cabinet.  —  As  a  Cabinet,  the  ministers  represent  the 
Chambers.  They  are  commonly  chosen  from  amongst  the  mem- 
bers of  the  Houses  ;  but,  whether  members  or  not,  they  have,  as 
ministers,  the  right  to  attend  all  sessions  of  the  Chambers  and  to 


158  THE  GOVERNMENT  OF  FRANCE. 

take  a  specially  privileged  part  in  debate.1  The  same  right  ex- 
tends also  to  the  Under-secretaries,  who  are,  consequently,  usually 
members  of  the  Chambers. 

The  Council  of  Ministers.  —  As  an  administrative  Council 
the  ministers  are,  in  official  rank  at  least,  subordinate  to  the 
President,  who  is  the  Chief  Executive.  The  Council  sits  in  his 
presence  and  under  his  presidency.  Its  duty  is  to  exercise  a 
general  oversight  of  the  administration  of  the  laws,  with  a  view 
to  giving  unity  of  direction  to  affairs  of  state.  In  case  of  the 
death,  resignation,  or  incapacitation  of  the  President  of  the  Re- 
public, the  Council  is  to  act  in  his  stead  until  the  National  As- 
sembly can  meet  and  elect  his  successor.  Its  members  are  ex 
officio  members  of  the  Council  of  State,  the  highest  judicial  tri- 
bunal of  the  Republic  for  the  determination  of  administrative 
cases  (page  174). 

Relation  of  the  Ministers  to  the  President.  —  The  Council 
of  Ministers  is  a  body  recognized  by  law,  the  Cabinet  is  not :  it 
is  only  the  ministers  in  consultation  concerning  matters  affecting 
their  political  responsibility :  it  is,  aside  from  such  meetings  for 
consultation,  only  a  name  representing  their  union  in  responsi- 
bility. But  the  two  names,  Council  and  Cabinet,  furnish  con- 
venient means  for  making  plain  the  various  relations  of  the 
ministers  to  the  President.  As  a  Council  they  are,  in  a  sense, 
his  creation ;  as  a  Cabinet  they  are,  in  a  sense,  his  masters.  The 
Executive  Departments  or  Ministries  over  which  they  preside 
are  the  creation,  not  of  the  Constitution  or  of  statutes,  but  of  the 
President's  decree.  No  decree  of  the  President  is  valid,  however, 
unless  countersigned  by  the  minister  whose  department  is  affected. 
Any  such  decree  must,  too,  almost  necessarily  affect  the  budget, 
and  must  in  that  way  come  within  the  control  of  the  ministers 
and  the  Chambers.  The  ministers  are  the  President's  appointees ; 
but  he  must  appoint  ministers  who  are  in  agreement  with  the 
majority  in  the  Chambers,  and  they  are  responsible  to  the  Cham- 
bers alone  for  their  conduct  in  office.  The  President  is  the  head 
of  the  administration ;  but  his  salary  is  dependent  upon  the 

1 A  minister  may  speak  at  any  time  in  the  Chambers ;  not  even  the 
cloture  (previous  question)  can  exclude  him.  In  1888  the  Minister  of  War 
was  without  a  seat  in  the  Chamber. 


THE   GOVKKN.MENT   OB^    FRANCE.  159 

annual  budget  which  tin-  Minister  of  Kinan<v  presents  to  the 
Chambers :  and  the  items  of  the  budget  are  matter  of  agreement 
between  the  ministers  and  the  Chambers. 

All  these  *  buts '  are  so  many  fingers  pointing  to  the  power  of 
the  Cabinet  over  the  President.  The  Ministers  are  in  fact  not  his 
representatives,  but  representatives  of  the  Chambers.  In  this 
capacity  they  control  not  the  policy  only,  but  also  the  patronage 
of  the  government.  Naturally  the  President's  appointments, 
needing,  as  they  do  in  every  case,  the  countersignature  of  a 
minister,  are  in  general  the  appointments  of  the  ministers ;  and 
their  appointments  are  too  often  bestowed  according  to  their  in- 
terest in  the  Chambers,  —  are  too  often  used,  in  short,  to  be  cast 
as  bait  for  votes. 

The  Patronage  of  Office,  indeed,  threatens  to  become 
even  more  of  a  menace  to  good  government  in  France  than  it  has 
been  to  good  government  in  our  own  country  under  the  federal 
system  of  appointment.  The  number  of  offices  in  the  gift  of  the 
ministers  in  France  is  vastly  greater  than  the  number  within  the 
gift  of  the  President  of  the  United  States ;  and  the  ministers' 
need  to  please  the  Chambers  by  favors  of  any  and  all  kinds  is  in- 
comparably greater  than  our  President's  need  to  please  Congress, 
since  they  are  dependent  upon  the  good-will  of  the  Chambers  for 
their  tenure  of  office,  while  he  is  not  dependent  on  Congress  for  his. 

There  have  never  yet  been  in  France,  however,  any  such  whole- 
sale removals  from  office  upon  the  going  out  of  one  administra- 
tion and  the  coming  in  of  another  as  we  have  seen  again  and 
again  in  this  country ;  because  there  has  really  been  no  radical 
change  of  administration  in  France  since  the  days  of  MacMahon. 
In  this  country,  as  in  England,  there  are  two  great  national  parties, 
and  the  government  is  now  in  the  hands  of  one  and  again  in  the 
hands  of  the  other.  But  in  France  a  change  of  cabinet  means 
nothing  more  than  a  change  from  the  leadership  of  one  group  to 
the  leadership  of  another. 

For  some  years  after  the  establishment  of  the  present  form  of 
government,  the  only  real  party  opposed  to  the  Republicans  was 
made  up  of  persons  known  or  suspected  to  be  hostile  to  the  very 
form  of  government  under  which  the  country  was  living.  The 
people  never  gave  it  a  majority  in  the  Chamber  and  were  never 


160  THE  GOVERNMENT  OF  FRANCE. 

willing  to  intrust  it  with  office.  With  the  general  acceptance  of 
the  Republic  this  monarchical  party  has  disappeared  ;  support  of 
the  Republic  has  become  unanimous.  No  well-defined  issues 
have  divided  the  people  or  their  representatives  into  two  great 
political  parties ;  at  present  eight  parties  are  represented  in  the 
Chamber  of  Deputies,  ranging  in  number  after  the  last  election 
from  136  to  26,  with  18  Independents.  Since  no  party  has  a 
majority,  a  ministry  must  depend  upon  a  bloc,  or  union  of  parties. 
There  is  thus  no  strong  bond  of  support  behind  any  ministry,  and 
while  ministries  do  not  change  with  the  disconcerting  frequency 
of  the  earlier  yesKs  of  the  Eepublic,  their  tenure  is  still  far  too  in- 
secure and  short  lived.  Generally  a  new  cabinet  is  composed  in 
part  of  men  who  held  office  also  in  the  cabinet  just  thrown  out. 
It  is  a  change  only  of  chief  figures.  And  so  wholesale  removals 
from  office  do  not  take  place. 

Ministerial  Responsibility. — The  responsibility  of  the 
ministers  to  the  Chambers  is  of  law,  and  not  simply  of  custom 
as  in  England.  Their  tenure  of  office  is  dependent  upon  the 
favor  of  the  Houses.  It  would  doubtless  be  so  without  law,  for 
no  policy  of  theirs  could  succeed  without  legislative  approval  and 
support,  and  it  is  French  precedent  as  well  as  English  for  minis- 
ters to  resign  when  defeated.  They  resign  because  they  will  not 
carry  out  measures  of  which  they  disapprove.  In  theory  their 
responsibility  is  to  both  Houses ;  but,  as  a  matter  of  fact,  it  is 
almost  wholly  to  the  Chamber  of  Deputies.  The  votes  of  the 
Senate  alone  seldom  make  or  unmake  Cabinets 1 ;  that  has  come 
to  be  recognized  as  the  prerogative  of  the  popular  Chamber, 
which  is  more  directly  representative  of  the  nation. 

Questions  and  Interpellations.  —  The  ministers  may  be 
held  closely  to  their  responsibility  at  every  turn  of  their  policy 
by  means  of  various  simple  and  effective  forms  of  inquiry  on  the 
part  of  the  Chambers.  First  of  all  is  the  direct  question.  Any 
member  of  either  House  may,  after  due  notice  given  to  the  min- 
ister concerned,  ask  any  question  as  to  affairs  of  state ;  and  an 
answer  is  demanded,  by  custom  at  least,  to  every  question  which 

1  On  March  18,  1913  Briand  proposed  a  vote  of  confidence  in  the  Senate 
on  the  question  of  proportional  representation,  and  when  it  was  not  given, 
the  ministry  resigned. 


THE  GOVERNMENT  OF  FRANCE.          161 

can  be  answered  publicly  without  detriment  to  the  public  interest. 
Next  to  the  direct  question,  which  is  a  matter  between  the  indi- 
vidual questioner  and  the  minister  questioned,  comes  that  broader 
form  of  challenging  the  policy  of  the  Cabinet,  known  in  France 
as  the  '  Interpellation.1  The  simple  questioner  must  first  get  the 
consent  of  the  minister  to  hear  his  question ;  an  interpellation,  on 
the  contrary,  can  be  brought  on  without  awaiting  the  acquiescence 
of  the  minister.  It  is  a  special  and  formal  challenge  of  the 
policy  or  action  of  the  Cabinet  on  some  matter  of  the  day,  and  is 
commonly  the  occasion  of  a  general  debate.  It  usually  results  in 
a  vote  expressive  of  confidence  or  want  of  confidence  in  the  min- 
isters, as  the  case  may  be.  It  is  the  question  exalted  into  a 
subject  of  formal  discussion :  it  is  the  weightiest  form  of  interro- 
gating ministers  :  it  makes  them  and  all  that  they  have  done  the 
objects  of  set  attack  and  defence.  A  third  and  still  more  formal 
method  of  bringing  administrative  acts  under  the  scrutiny  of  the 
Chambers  consists  in  the  appointment  of  a  Committee  of  Investi- 
gation. 

The  power  of  interpellation  has  been  so  indiscriminately  and  unwisely 
used  in  France  as  seriously  to  discredit  her  system  of  cabinet  government. 
Interpellation  is  unhesitatingly  used  to  take  the  ministers  by  surprise 
Deputies  lie  in  wait  to  take  them  at  a  disadvantage.  They  are  *  inter- 
pellated,' moreover,  most  often,  not  upon  questions  of  first-rate  impor- 
tance or  in  any  way  representative  of  their  policy,  but  upon  trivial  matters 
of  the  moment.  A  sudden  impulse  upon  a  minor  question  of  administra- 
tion often  determines  the  vote,  and  a  cabinet  goes  out,  it  may  be,  as  if 
by  a  trick,  —  not  because  its  policy  has  been  rejected  or  discredited,  but 
because  a  chance  and  temporary  majority  has  been  got  together  against  it. 
Yet  the  French  regard  the  interpellation,  despite  its  abuses,  as  the  essence 
of  constitutional  government  and  an  indispensable  element  in  securing 
ministerial  responsibility.  The  Chambers  have  sought  within  recent  years 
to  lessen  the  evils  of  interpellation  by  restricting  the  opportunities  for  its 
use.  Under  the  present  rules  of  both  the  Senate  and  the  Chamber  inter- 
pellations can  be  made  only  on  one  day  of  the  week.  Demands  for  inter- 
pellations are  so  numerous  that  few  can  be  made  in  the  time  allotted,  and 
as  each  takes  its  turn  in  order,  it  has  happened  that  interpellations  have 
been  reached  as  long  as  a  year  and  a  half  after  they  were  made.  The 
Chamber  is  always  mistress  of  its  own  order  of  the  day  and  interpellations 
regarding  important  matters  may  be  heard  at  once  or  may  be  specially 
set  for  an  early  day  The  number  of  interpellations  is  still  so  great  as  to 
impose  a  terrible  tax  upon  the  time  of  both  ministers  and  Chambers. 


162  THE  GOVERNMENT  OF  FRANCE. 

Control  during  the  War.  —  The  Senate  and  the  Chamber  have 
exercised  a  wide  degree  of  control  over  the  government,  not  only  with 
respect  to  questions  of  internal  affairs  but  also  with  respect  to  its  diplo- 
matic policy  and  the  general  direction  of  military  affairs.  During  1915 
and  the  early  months  of  1916,  important  groups  in  the  Chamber  demanded 
that  interpellations  upon  diplomatic  and  military  affairs  should  be  dis- 
cussed in  secret  session,  but  the  government  opposed  this  on  the  ground  of 
the  serious  consequences  that  might  result  from  a  discussion  of  these 
matters,  even  in  a  secret  session.  The  right  of  the  Senate  and  Chamber 
to  control  was  not  questioned,  but  the  government  thought  it  could  be  done 
better  by  the  great  parliamentary  committees  on  the  army,  finance,  and 
foreign  affairs.  Finally  the  government  was  compelled  to  yield  and  on 
June  14-22,  1916,  secret  sessions  were  held  for  the  first  time  in  the  history 
of  the  Third  Republic.  Though  a  vote  of  confidence  in  the  Briand 
ministry  was  given,  the  Chamber  resolved  to  appoint  a  special  committee, 
which,  with  the  concurrence  of  the  government,  should  exercise  effective 
control.  But  the  Chamber  was  finally  compelled  to  abandon  the  plan  of  a 
special  committee  of  control  and  on  July  26,  1916,  it  delegated  to  the  great 
standing  committees  the  powers  necessary  to  exercise  effective  control.1 

The  Course  of  Legislation. — All  propositions  alike,  whether 
made  by  ministers  or  by  private  members,  have  to  go  to  a  special 
committee  for  consideration  before  reaching  a  debate  and  vote  by 
the  whole  House  ;  but  the  propositions  of  private  members  must, 
in  the  Senate,  pass  another  test  before  they  reach  even  a  special 
committee.  They  must  go  first  to  the  '  Monthly  Committee  on 
Parliamentary  Initiative,'  and  it  is  only  after  hearing  the  report 
of  that  Committee  upon  bills  submitted  to  it  that  the  Senate 
determines  whether  particular  measures  shall  be  taken  under 
further  consideration  and  advanced  to  the  special-committee  stage. 
In  the  Chamber  of  Deputies  every  proposition  of  a  private  mem- 
ber goes  to  the  president  of  the  Chamber  who  refers  it  to  the 
permanent  committee  within  whose  province  it  falls.  A  vote. 
of  emergency  taken  upon  the  introduction  of  a  measure  can,  how- 
ever, rescue  a  ministerial  bill  from  all  committee  handling,  and 
a  private  member's  bill  from  the  delays  of  the  Initiative  Com- 
mittee. 

The  Committees.2  —  The  committee  organization  of  the 
House  is  worthy  of  special  remark.  Every  month  during  the 
session,  the  members  of  the  Senate  are  divided  by  lot  into  nine 
1  Duguit,  Manuel,  pp.  452  ff.  2  Ibid.,  pp.  431  ff. 


THE  GOVERNMENT  OF  FRANCE.  163 

bureaux.  The  business  of  these  bureaux  is  not  to  consider  bills 
but  to  elect  the  committees  to  which  bills  are  referred. 

In  the  Chamber  of  Deputies  since  1915,  at  the  opening  of  a 
new  session  eleven  bureaux  are  chosen  by  lot  and  they  proceed 
at  once  to  examine  the  certificates  of  election ;  other  bureaux 
are  chosen  in  the  event  the  Chamber  decides  to  establish  a  per- 
manent or  special  committee,  elected  by  the  bureaux,  in  addition 
to  the  great  standing  committees. 

Until  1902  the  committees  of  both  Senate  and  Chamber  of 
Deputies  were  special  and  temporary :  special  in  that  they 
were  appointed  to  consider  one  or  more  definite  points  and  they 
could  not  consider  anything  else  ;  temporary,  that  is,  they  ceased 
to  exist  so  soon  as  the  matter  with  which  they  were  intrusted 
was  disposed  of.  Since  1902  the  Chamber  has  adopted  the 
system  of  permanent  or  standing  committees,  chosen  for  a  year, 
among  which  all  the  business  is  distributed.  In  1911  the  Senate, 
though  holding  in  principle  to  the  theory  of  special  committees, 
decided  to  establish  a  certain  number  of  standing  committees. 
The  number  of  these  committees  in  the  Chamber  is  nineteen  and 
in  the  Senate  four.  In  the  Senate  they  are  chosen  by  the 
bureaux,  but  in  the  Chamber  a  method  is  used  which  gives  pro- 
portional representation  to  the  various  political  groups ;  the 
bureaux  of  the  different  groups  report  to  the  president  a  com- 
plete list  of  their  members  and,  after  agreement  among  them- 
selves, the  list  of  candidates  which  they  have  determined  in 
accordance  with  the  rule  of  proportion.  This  list  is  regarded  as 
having  received  the  ratification  of  the  Chamber  unless  fifty 
deputies  have  opposed  it  by  a  declaration  in  writing  delivered  to 
the  president.  In  the  event  of  opposition  the  Chamber  proceeds 
to  a  vote;  by  the  scrutin  de  liste.  Each  committee  consists  of 
forty-four  members  and  no  deputy  can  serve  on  more  than  three 
committees  at  the  same  time. 

The  very  existence  of  committees  and  of  the  matter-of-course 
reference  of  all  measures  to  their  consideration,  means  that  the 
Chamber  insists  upon  examining  and  sifting  all  proposals  for 
itself,  whether  they  have  been  introduced  by  the  ministers  or  not. 
It  means,  consequently,  that  the  leadership  of  the  ministers  is 
thus  still  further  broken  and  embarrassed.  The  committees  will 


164  THE  GOVERNMENT  OF  FRANCE. 

always  insist  upon  putting  some  touch  at  least  of  their  own 
handiwork  upon  the  bills  submitted  to  them;  and  even  the 
ministers  may  count  upon  seeing  their  proposals  pulled  about 
and  altered. 

The  Budget  Committee.  —  All  financial  matters  are  con- 
sidered by  special  standing  committees  chosen  for  one  year ;  in 
the  Chamber  of  Deputies  by  a  Budget  Committee  composed  of 
forty-four  members,  and  in  the  Senate  by  a  Finance  Committee 
composed  of  eighteen  members  j  and  these  Committees,  like  other 
standing  committees,  arrogate  to  themselves  something  like  abso- 
lute domination  of  the  financial  policy  of  the  government,  with 
the  result  of  robbing  financial  legislation  of  order  and  consistency, 
and  of  sadly  obscuring  the  responsibility  of  the  ministers.  Other 
committees  simply  consider  and  report ;  the  Budget  Committee 
undertakes  often  radically  to  revise,  sometimes  altogether  to 
transform,  ministerial  proposals,  originating  when  it  was  meant 
only  to  control. 

Government  by  the  Chambers.  —  Ministerial  responsibility  has 
rapidly  degenerated  in  France  into  government  by  the  Chamber  of  Deputies. 
Ministerial  responsibility  is  compatible  with  ministerial  leadership ;  and 
under  a  ministry  really  given  leave  to  direct  the  course  of  public  policy,  the 
Chambers  judging  and  controlling  but  not  directing,  that  policy  might  have 
dignity,  consistency,  and  strength.  But  in  France  the  ministers  have,  more 
and  more  as  the  years  of  the  Republic  have  multiplied,  been  made  to  substi- 
tute for  originative  leadership  submissive  obedience  to  the  wishes,  and  even 
to  the  whims,  of  the  Chamber  of  Deputies.  The  extraordinary  functions 
which  have  been  arbitrarily  assumed  by  the  Budget  Committee  simply  mirror 
the  whole  political  situation  in  France. 

The  Administrative  and  Judicial  Powers  of  the  Executive. 

—  It  must  not  be  supposed,  because  the  life  of  a  ministry  is  short 
and  its  leadership  in  the  houses  uncertain,  that  it  wholly  lacks 
power  while  it  lasts.  It  inherits  the  traditional  prerogatives  of 
the  French  Executive,  and  they  are  very  great.  The  powers  of 
the  President  are  the  powers  of  the  ministers.  His  power  to 
execute  and  administer  the  laws  means,  according  to  the  imme- 
morial practice  in  France,  that  he  may  freely  interpret  them  to 
meet  circumstances  and  cover  cases  which  the  legislature  did  not 
foresee  or  provide  for.  The  laws  are  for  the  most  part  them- 
selves without  detailed  provisions.  They  give  the  officers  of 


THE   GOVERNMENT   OF   FRANCE.  165 

state  who  are  to  execute  them  a  principle  by  which  to  go  rather 
than  a  body  of  minute  instructions.  He  may  not  disregard  the 
plain  principles  of  the  law,  indeed,  but  he  is  not  restrained  by 
detail ;  and  in  shaping  administrative  arrangements,  instructing 
officials,  and  developing  plans  to  meet  the  requirements  of  public 
business  the  executive  authority  exercised  by  the  ministers 
through  the  President's  decrees  is  in  most  cases  wholly  free  from 
the  trammels  of  statute.  The  legality  of  administrative  action, 
moreover,  is  tested,  when  challenged,  not  by  the  ordinary  courts 
of  law,  in  which  private  rights  are  determined  and  guarded,  but 
by  special  administrative  tribunals  in  which  the  utmost  latitude 
of  discretion  on  the  part  of  officers  of  state  is  the  principle  chiefly 
respected  and  enforced.  The  Executive  inherits  a  very  absolute 
tradition  of  power. 

The  President's  power  to  *  dispose  of  the  armed  force '  of  the  nation  has 
been  employed  in  such  a  way  as  almost  to  amount  to  a  declaration  of  war, 
in  some  of  the  aggressive  colonial  schemes  into  which  French  ministries 
have  allowed  themselves  to  be  drawn.  There  goes  with  the  executive 
power  of  appointment,  too,  an  absolute  power  of  removal  from  office,  and 
all  the  vast  official  machinery  of  a  centralized  state  is  under  the  hands  of 
the  ministers  to  use  almost  as  they  will. 

Departmental  Functions.  —  The  main  duties  of  most  of  the 
Departments  are  sufficiently  indicated  by  their  names  and  illus- 
trate the  range  of  function  assumed  by  the  government  in  France 
more  conspicuously  than  they  illustrate  the  form  and  spirit  of 
her  political  institutions.  A  mirror  of  the  political  life  of  France 
is  to  be  found  in  the  organization  of  the  Ministry  of  the  Interior, 
which  is  more  largely  concerned  than  any  other  Department  with 
the  multifarious  details  of  local  government. 

LOCAL  GOVERNMENT. 

France  still  preserves  the  administrative  divisions  created  by 
the  Constituent  Assembly  in  December,  1789.  Instead  of  the 
old  system  of  ecclesiastical  dioceses,  military  provinces,  and  ad- 
ministrative '  generalities '  (page  143),  with  their  complexities  and 
varieties  of  political  regulation  and  local  privilege,  there  is  a 
system,  above  all  things  simple  and  symmetrical,  of  Departments 


166  THE  QOVERNMENT  OF  PRANCE. 

divided  into  Arrondissements,  Arrondissements  diyided  into  Can- 
tons, and  Cantons  divided  into  Communes.  Much  the  most  signifi- 
cant of  these  divisions  is  the  Department :  whether  for  military, 
judicial,  educational,  or  political  administration,  it  is  the  impor- 
tant, the  persistent  unit  of  organization  ;  arrondissement,  canton 
and  commune  are  only  divisions  of  the  Department,  —  not  frac- 
tions of  France,  but  only  fractions  of  her  Departments.  The 
canton,  indeed,  is  little  more  than  an  election  district ;  and  the 
arrondissement  is  only  a  fifth  wheel  in  the  administration  of 
the  Department.  The  symmetry  of  local  government  is  perfect 
throughout.  Everywhere  the  central  government  superintends 
the  local  elective  bodies ;  and  everywhere  those  bodies  enjoy  the 
same  privileges  and  are  hedged  in  by  the  same  limitations  of 
power. 

The  several  parts  of  the  system  of  local  government  in 
France  will  thus  be  seen  to  rest,  not  upon  any  historical  ground- 
work, creating  each  a  vital  whole,  with  traditions  of  local  self- 
government  handed  down  from  an  older  time  of  freedom,  but  upon 
a  bureaucratic  groundwork  of  system.  France,  therefore,  in  ap- 
proaching confirmed  democracy  and  complete  self-government,  is 
building,  not  upon  a  basis  of  old  habit,  fixed  firmly  in  the  stiff 
soil  of  want  and  prejudice,  but  upon  a  basis  of  new  habit  widely 
separated  from  old  wont,  depending  upon  the  shifting  soil  of  new 
developments  of  character,  new  aptitudes,  new  purposes.  Her 
new  ways  run  across,  not  with,  the  grain  of  her  historical  nature. 
Her  self-government  is  a-making  instead  of  resting  upon  some- 
thing already  made. 

The  Department:  the  Prefect.  —  The  central  figure  of 
French  administration  is  the  Prefect,  the  legal  successor  of  the 
Intendant  (page  143).  He  is  the  agent  of  the  central  government 
in  the  Department.  He  is  the  recruiting  officer  of  that  district, 
its  treasurer,  its  superintendent  of  schools,1  its  chief  of  police,  its 
executive  officer  in  all  undertakings  of  importance,  and  the  ap- 
pointer  of  most  of  its  subordinate  officials.  He  fills  a  double 
capacity:  he  is  the  agent  and  appointee  of  the  central  govern- 
ment, and  at  the  same  time  the  agent  of  the  local  legislative 
authorities.  He  is  at  once  member  and  overseer  of  the  General 

1  He  appoints  and  disciplines  the  teachers. 


Till:    liOVKlINMENT   OF    FIIANCK.  167 

Council  of  his  Department ;  and  he  is  necessarily  its  agent,  inas- 
much as  he  commands,  as  representative  of  the  authorities  in 
Paris,  all  the  instrumentalities  through  which  its  purposes  must 
be  effected.  A  minister  can  veto  any  act  of  a  Prefect,  —  for  he 
is  the  representative  of  any  minister  who  needs  his  executive  aid 
in  the  Department,  —  but  no  minister  can  override  him  and  act 
by  his  own  direct  authority.  Until  he  is  dismissed  the  minister 
must  act  through  him. 

When  acting  as  the  agent  of  the  central  authorities  in  carrying 
out  the  provisions  of  general  statutes  or  of  general  administrative 
regulations  the  Prefect  has,  of  course,  no  choice  but  to  obey  the 
orders  he  receives  from  the  ministers  in  Paris.  But  when  he 
acts  in  local  matters,  he  may  use  his  own  discretion  and  can  be 
brought  to  book  only  by  judicial  process  and  upon  complaint. 
It  is  of  great  consequence,  therefore,  that  his  powers  in  the 
field  of  local  government  are  so  many  and  so  important.  He 
prepares  the  budget  of  the  Department  not  only  but  also  all  the 
other  business  upon  which  the  General  Council  of  the  Department 
(pages  168,  169)  is  expected  to  act.  His  initiative  determines  the 
greater  part  of  what  that  Council  does ;  and  it  can  act  only  through 
him  in  getting  its  resolutions  carried  into  effect.  His  police 
power  extends  beyond  the  organization  and  government  of  the 
police  of  the  Department  to  the,  at  any  rate,  indirect  control  of 
the  police  organization  and  the  police  regulations  of  the  Com- 
munes, many  of  which  are  great  cities,  with  elective  officers  of 
their  own  (page  171).  Every  mayor's  police  appointments  must 
be  confirmed  by  him,  and  he  alone  can  remove  police  officials 
from  office  in  the  Communes.  '  Police '  affairs,  in  France,  more- 
over, cover  not  merely  the  preservation  of  order  and  the  enforce- 
ment of  the  law,  but  also  such  important  matters  as  those,  for 
example,  which  concern  the  public  health.  In  respect  of  some 
matters  of  local  management,  too,  the  Prefect  can  act  by  direct 
orders  of  his  own,  addressed  to  the  officials  of  the  Communes,  as 
if  to  his  own  immediate  subordinates.  He  can  in  his  discretion 
suspend  the  mayor  of  a  Commune  from  office  for  a  month's  time ; 
he  can  suspend  also  the  session  of  a  communal  council  (page  173) 
for  a  like  period. 

The  Prefect  may  take  part  in  the  proceedings  of  the  General 


168  THE  GOVERNMENT  OF  FRANCE. 

Council  of  the  Department  at  any  time  except  when  his  accounts 
are  being  considered. 

Such  is  the  legal  position  of  the  Prefect.  His  actual  position 
is  somewhat  different.  The  politics  of  the  Eepublic,  one  of 
whose  tendencies  has  been  to  contribute  by  degrees  to  local  self- 
government,  is  making  the  Prefect  more  and  more  largely  the 
executive  agent  of  the  General  Council  of  his  Department.  He 
is  appointed  by  the  Minister  of  the  Interior  and  is  in  law  first  of 
all  and  chiefly  the  representative  of  the  Interior.  But  the  other 
ministers  also,  as  has  been  said,  act  through  him  in  many  things. 
He  frequently  owes  his  appointment  to  the  favorable  influence 
of  the  deputies  and  senators  from  his  Department  with  the 
Minister  of  the  Interior,  and  he  is  kept,  by  his  personal  relations 
with  them,  close  to  local  influences.  He  is,  consequently,  not  the 
autocrat  he  was  under  Napoleon. 

The  General  Council  of  the  Department.  —  The  legislative 
body  of  the  Department  is  the  General  Council,  which  is  made 
up  of  representatives  chosen,  one  from  each  canton,  by  universal 
suffrage.  Except  during  a  session  of  the  Chambers,  the  Presi- 
dent of  the  Republic  may  at  any  time  dissolve  the  General  Council 
of  a  Department  for  cause.  The  election  of  representatives  to  the 
General  Council,  like  the  election  of  deputies,  does  not  take  place 
upon  days  set  by  statute,  but  on  days  set  by  decree  of  the  Presi- 
dent. Councillors  are  elected  for  a  term  of  six  years,  one-half  of 
the  membership  of  the  Council  being  renewed  every  three  years. 
In  order  that  members  of  the  General  Council  may  be  in  fact 
representatives  of  at  least  a  respectable  number  of  the  voters  of 
the  cantons,  the  law  provides,  as  in  the  case  of  the  election  of 
Deputies  (page  153),  that  no  one  shall  be  elected  on  a  first  ballot 
unless  voted  for  on  that  ballot  by  an  absolute  majority  in  a  poll 
of  at  least  one-fourth  of  the  registered  voters.  Attention  having 
been  called  to  the  election  by  the  failure  of  a  first  ballot,  a  plu- 
rality will  suffice  to  elect  on  a  second.  In  case  of  a  tie,  the  older 
candidate  is  to  be  declared  elected. 

The  membership  of  the  Council  varies  in  the  several  Depart- 
ments, according  to  the  number  of  cantons,  from  seventeen  to 
sixty-seven. 

The  Council  of  State  is  judge  of  the  validity  of  elections  to  its 


THE  GOVERNMENT  OF  FRANCE.  169 

membership,  and  a  seat  may  be  contested  on  the  initiative 
either  of  a  member  of  the  Council,  the  Prefect,  or  a  constituent 
of  the  member  whose  rights  are  in  question,  or  a  defeated 
candidate. 

There  are  two  regular  sessions  of  the  General  Council  each 
year.  The  duration  of  both  is  limited  by  law :  for  the  lirst  to 
fifteen  days,  for  the  second  to  one  month.  Extra  sessions  of 
eight  days  may  be  called  by  the  President  of  the  Republic  or  by 
the  Prefect  at  the  written  request  of  two-thirds  of  the  members. 
If  the  Council  in  any  case  outsit  its  legal  term,  it  may  be  dis- 
solved by  the  Prefect ;  if  it  overstep  its  jurisdiction  in  any  matter, 
its  acts  may  be  annulled  by  a  decree  of -the  President.  Members 
are  liable  to  penalties  for  non-attendance  or  neglect  of  duty. 
They  are,  however,  on  the  other  hand,  paid  nothing  for  their 
services. 

At  the  first  regular  session  of  the  year  the  Council  considers 
general  business ;  at  the  second  and  longer  session  it  discusses 
the  budget  of  the  Department,  presented  by  the  Prefect,  and 
audits  the  accounts  of  the  year.  At  either  session  it  may  require 
from  the  Prefect  or  any  other  chief  of  the  departmental  service 
full  oral  or,  if  it  choose,  written  replies  to  all  questions  it  may 
have  to  ask  with  reference  to  the  administration. 

The  supervisory  and  regulative  powers  of  the  General  Council 
are  of  considerable  importance ;  but  its  originating  powers  are 
of  the  most  restricted  kind.  It  has  the  right  to  appropriate 
certain  moneys  for  the  expenses  of  local  government,  but  it  has 
not  the  right  to  tax  for  any  purpose.  The  amount  and  the  source 
of  the  money  it  is  to  use  are  determined  by  the  Chambers  in 
Paris.  Even  such  narrowed  acts  of  appropriation  as  it  can  pass 
have  to  be  confirmed  by  presidential  decree.  Its  chief  functions 
are  directory,  not  originative.  It  sees  to  the  renting  and  main- 
tenance of  the  buildings  needed  for  its  own  use,  for  the  use  of  the 
Prefect  and  his  subordinates,  for  the  use  of  the  public  schools, 
and  for  the  use  of  the  local  courts  ;  it  votes  the  pay  of  the  police 
(gendarmerie)  of  the  Department ;  provides  for  the  cost  of  print- 
ing the  election  lists ;  supervises  the  administration  of  the  roads, 
railroads,  and  public  works  of  the  Department ;  oversees  the  man- 
agement of  lunatic  asylums  and  the  relief  of  the  poor.  Most 


170  THE  GOVERNMENT  OF  FRANCE. 

important  of  all,  it  apportions  among  the  several  arrondissements 
the  direct  taxes  annually  voted  by  the  Chambers. 

The  Departmental  Commission. — During  the  intervals 
between  its  sessions,  the  General  Council  is  represented  in  local 
administration  by  a  committee  of  its  own  members  called  the 
Departmental  Commission,  which  it  elects  to  counsel  and  over- 
see the  Prefect.  The  powers  of  this  Commission,  however,  are 
merely  advisory. 

Central  Control.  —  The  most  noticeable  feature  of  this 
system  is  the  tutelage  in  which  local  bodies  and  the  individual 
citizen  himself  are  kept.  Fines  compel  the  members  of  the  Gen- 
eral Council  to  do  their  work,  and  then  every  step  of  that  work 
is  liable  to  be  revised  by  the  central  administration.  Irregulari- 
ties in  the  election  of  a  member  may  be  brought  to  the  attention 
of  the  General  Council  by  the  Prefect,  as  well  as  by  its  own 
members  or  by  petition  from  the  constituency  affected.  If  the 
Council  overstep  the  limits  of  its  powers,  it  is  checked  by  decree 
of  the  President,  and  not  by  such  a  challenging  of  its  acts  in  the 
courts  by  the  persons  affected  as,  in  English  or  American  prac- 
tice, strengthens  liberty  by  making  the  individual  alert  to  assert 
the  law  on  his  own  behalf,  instead  of  trusting  inertly  to  the  gov- 
ernment to  keep  all  things  in  order.  Even  expression  of  opinion 
on  the  part  of  the  General  Council  is  restricted.  It  may  express 
its  views  on  any  matter  affecting  local  or  general  interests,  f  if 
only  it  never  express  a  wish  which  has  a  political  character.7 

The  Arrondissement  is  the  electoral  district  for  the  Cham- 
ber of  Deputies,  the  members  of  the  Chamber  of  Deputies  being 
elected,  as  we  have  seen,  not  '  at  large,7  for  the  whole  Depart- 
ment, but  by  Arrondissements,  —  not  by  scrutin  de  liste,  that  is, 
but  by  scrutin  d' arrondissement  (page  152).  It  also  serves  as  a 
judicial  district  and  as  the  province  of  an  arrondissemental 
Council.  Its  chief  administrative  officer  is  a  Sub-Prefect.  The 
Council  of  the  Arrondissement  (conseil  d'arrondissement),  elected 
from  the  Cantons,  like  the  General  Council  of  the  Department? 
has  no  more  important  function  than  that  of  subdividing  among 
the  communes  the  quota  of  taxes  charged  to  the  Arrondissement 
by  the  General  Council.  For  the  rest,  it  merely  gives  advice  to 
administrative  officers  appointed  by  the  ministers  in  Paris.  Its 


THE  GOVERNMENT  OF  FRANCE.  171 

decisions  are  largely  controlled  by  the  Prefect,  and  may  be  an- 
nulled by  the  President  of  the  Republic. 

The  Canton  is  the  electoral  district  from  which  members 
are  chosen  to  the  General  Council  and  the  Council  of  the  Arron- 
dissement ;  it  marks  the  jurisdiction  of  the  Justice  of  the  Peace ; 
it  is  a  muster  district  for  the  army,  and  serves  as  a  territorial  unit 
of  organization  for  registration  and  for  the  departmental  care  of 
roads  ;  but  it  has  no  administrative  organization  of  its  own.  It 
is  a  mere  region  of  convenient  size  for  electoral  and  like  purposes. 
The  Commune,  unlike  the  Arrondissement  and  Canton,  is 
as  vital  an  organism  as  the  Department.  All  towns  are  Com- 
munes; but  there  is,  of  course,  a  much  larger  number  of  rural 
than  of  town  Communes. 

There  are  36,229  Communes,  most  of  which  have  less  than 
1500  inhabitants  and  many  of  which  have  less  than  500.  One 
hundred  and  seventeen  have  more  than  20,000.  Every  city  of 
France,  except  Paris  and  Lyons,  is  organized  as  a  Commune. 

Paris  has  its  special  form  of  administration,  which  differs  from 
that  of  all  the  other  cities  of  France.  It  has  no  mayor,  but  its 
chief  administrative  officials  are  two  Prefects  —  one,  the  Prefect 
of  the  Department  of  the  Seine,  which  embraces  Paris  and  the 
immediate  environs,  who  exercises  all  the  functions  of  a  mayor 
except  those  relating  to  police ;  the  other,  the  Prefect  of  police. 
The  Municipal  Council  is  composed  of  eighty  members,  four  from 
each  of  the  twenty  Arrondissements"  into  which  the  city  is 
divided.  Each  Arrondissement  has  its  own  mayor,  who  is  ap- 
pointed by  the  central  government. 

The  general  rule  of  French  administration  is  centralization,  the 
direct  representation  of  the  central  authority,  through  appointed 
officers,  in  every  grade  of  local  government,  and  the  ultimate 
dependence  of  all  bodies  and  officers  upon  the  ministers  in  Paris. 
In  one  particular  this  rule  is  departed  from  in  the  Commune. 
The  chief  executive  officer  of  the  Commune,  the  mayor,  is  elected, 
not  appointed.  He  is  chosen  by  the  Municipal  Council  from 
among  its  own  members  and  is  given  one  or  more  assistants 
elected  in  the  same  way. 

Down  to  1874  the  mayors  of  the  more  populous  Communes 
were  appointed  by  the  authorities  in  Paris,  the  mayors  of  the 


172  THE  GOVERNMENT  OF  FRANCE. 

smaller  Communes  by  the  Prefects.  Between  1831  and  1852  the 
choice  of  the  appointing  power  was  confined  to  the  members  of 
the  Municipal  Councils ;  between  1852  and  1874  the  choice  might 
be  made  outside  those  bodies.  From  1874  to  1882  the  smaller 
Communes  elected  their  mayors,  indirectly  as  now.  Since  1882 
all  mayors  have  been  elected. 

The  Communal  Magistracy.  —  The  mayor  and  his  assist- 
ants do  not  constitute  an  executive  board :  the  mayor's  assistants 
are  not  his  colleagues.  He  is  head  of  the  communal  government : 
they  have  their  duties  assigned  to  them  by  him.  The  mayor  is 
responsible  to  the  central  administration  and  its  departmental 
representative,  the  Prefect.  Once  elected,  he  becomes  the  repre- 
sentative of  the  Minister  of  the  Interior.  If  he  will  not  do  the 
things  which  the  laws  demand  of  him  in  this  capacity,  the  Prefect 
may  delegate  some  one  else  to  do. them,  or  even  do  them  himself 
instead.  For  cause,  both  the  mayor  and  his  assistants  may  be 
suspended,  by  the  Prefect  for  one  month,  by  the  Minister  of  the 
Interior  for  three  months,  and  all  their  acts  are  liable  to  be  set 
aside  either  by  Prefect  or  Minister.  They  may  even  be  removed 
by  the  Executive. 

In  case  of  a  removal  it  is  the  duty  of  the  Municipal  Council  to 
fill  the  vacancies,  and  to  fill  them  with  other  men ;  for  removal 
renders  the  mayor  or  his  assistants  ineligible  for  pne  year. 

One  of  the  duties  of  the  mayor  is  to  appoint  the  police  force  and 
other  subordinate  officers  of  the  Commune ;  but  in  Communes  of 
over  forty  thousand  inhabitants  the  mayor's  composition  of  the 
police  force  must  be  ratified  by  decree  of  the  President,  and  in 
other  Communes  all  his  appointments  must  be  confirmed  by  the 
Prefect. 

The  Municipal  Council.  —  There  is  in  every  Commune  a 
Municipal  Council  (of  from  ten  to  thirty-six  members,  according 
to  the  size  of  the  Commune)  which  has,  besides  its  privilege  of 
electing  the  mayor  and  his  assistants,  pretty  much  the  same  place 
in  the  government  of  the  Commune  that  the  General  Council  has 
in  the  government  of  the  Department ;  and,  in  the  main,  a  like 
dependence  upon  the  approval  of  the  central  administration. 
Unlike  the  General  Council,  the  Municipal  Council  is  liable  to 
be  suspended  for  one  month  by  the  Prefect ;  like  the  General 


THE  GOVERNMENT  OF  FRANCE.  173 

Council,  it  may  be  dissolved  by  decree  of  the  President  passed 
in  the  Council  of  Ministers.  It  holds  four  regular  sessions  each 
year,  one  of  which  it  devotes  to  the  consideration  of  the  munici- 
pal budget,  which  is  presented  by  the  mayor.  Its  financial  ses- 
sion may  continue  six  weeks  ;  none  of  its  other  sessions  may  last 
more  than  fourteen  days.  The  mayor  acts  as  its  president,  ex- 
cept when  his  own  accounts  are  under  consideration. 

Neither  the  Municipal  Council  nor  the  Council  of  the  Arron- 
dissement  is  judge  of  the  validity  of  the  elections  of  its  members. 
Contested  election  cases  are  heard  by  the  Prefectural  Council. 

Until  1831  the  Municipal  Council  was  chosen  by  the  Prefect 
from  a  list  of  qualified  persons  made  up  in  the  Commune.  Be- 
tween 1831  and  1848  its  members  were  elected  by  a  restricted 
suffrage.  Since  1848  they  have  been  elected  by  universal  suffrage. 

In  case  of  a  dissolution  of  the  Municipal  Council,  its  place  may 
be  taken,  for  the  oversight  of  current  necessary  matters,  by  a 
delegation  of  from  three  to  seven  members  appointed  by  the  Presi- 
dent of  the  Republic  to  act  till  another  election  can  be  had.  This 
delegation  cannot,  however,  take  upon  itself  more  than  the  merely 
directory  powers  of  the  Council. 

Administrative  Courts :  the  Council  of  State. — So  thorough 
is  the  differentiation  of  functions  in  France  that  actions  at  law 
arising  out  of  the  conduct  of  administration  are  instituted,  not  in 
the  regular  law  courts  connected  with  the  Ministry  of  Justice, 
but  in  special  administrative  courts  connected  with  the  Ministry 
of  the  Interior.  French  thought,  inherited  from  days  of  un- 
bounded royal  prerogative,  makes  sharp  separation  between 
Public  Law,  which  concerns  the  action  of  the  government,  and 
Private  Law,  which  concerns  the  relations  of  individuals  to  one 
another.  The  ordinary  courts  will  determine  the  rights  of  an 
individual  when  they  concern  the  action  of  another  individual ; 
but  the  special  courts  of  the  administration  must  determine  the 
questions  involved  in  any  challenge  of  official  action,  —  in  any 
challenge  of  the  public  power.  (Comp.  page  166.)  The  highest 
of  these  courts  is  the  Council  of  State,  which  is  composed  of  the 
ministers,  and  of  various  high  administrative  officers  of  the  per- 
manent service.  It  is  the  court  of  last  resort  on  administrative 
questions.  It  is  also  charged  with  the  duty  of  giving  advice  to 


174  THE  GOVERNMENT  OF  FRANCE. 

the  Chambers  or  to  the  government  on  all  questions  affecting  ad- 
ministration that  may  be  referred  to  it. 

The  Prefectural  Council.  —  Below  the  Council  of  State 
are  the  Prefectural  Council,  a  Court  of  Revision,  a  Superior 
Council  of  Public  Instruction,  and  a  Court  of  Audit.  These  are 
not  subordinate  to  each  other :  each  is  directly  subordinate  to  the 
Council  of  State.  The  Prefectural  Council  is  directly  associated 
with  the  Prefect  and  is  the  most  important  of  them.  It  has, 
amongst  other  weighty  functions,  that  of  determining  the  validity 
of  elections  to  the  Council  of  the  Arrondissement  and  to  the 
Municipal  Council.  For  the  rest,  it  has  jurisdiction  over  all  ad- 
ministrative questions,  and  over  all  conflicts  between  administra- 
tive authority  and  private  rights.  Its  processes  of  trial  and 
adjudication  are  briefer  and  less  expensive  than  those  of  the 
ordinary  law  courts.  In  almost  all  cases  an  appeal  lies  to  the 
Council  of  State. 

The  Prefect  is  the  legal  representative  of  the  government  in  cases 
brought  before  the  Prefectural  Council  ;  but  that  court  is  not  at  all  under 
his  dominance.  It  is  composed  of  permanent  judges,  one  of  whom,  at 
least,  is  usually  of  long  administrative  experience.  Its  members  are 
appointed,  and,  for  cause,  are  removable,  by  the  central  administration. 

THE  ADMINISTRATION  OF  JUSTICE. 

Ordinary  Courts  of  Justice.  —  The  supreme  court  of  France 
is  the  Cassation  Court  (the  Court,  that  is,  of  reversals  or  appeals) 
which  sits  at  Paris.  Next  below  it  in  rank  are  twenty-six  Courts 
of  Appeal,  the  jurisdiction  of  each  of  which  extends  over  several 
Departments.  These  hear  cases  brought  up  from  the  courts  of 
first  instance  which  sit  in  the  capital  towns  of  the  arrondisse- 
ments.  These  last  consider  cases  from  the  Justices  of  the  Peace, 
who  hold  court  for  the  adjudication  of  small  cases  in  the  cantons. 
By  decree  of  the  President,  passed  in  the  Council  of  Ministers, 
the  Senate  may  be  constituted  a  special  court  for  the  considera- 
tion of  questions  seeming  to  involve  the  safety  of  the  state ;  and 
such  questions  may  be  removed  by  the  same  authority  from  the 
ordinary  courts. 

The  appointment  of  all  judges  rests  with  the  President,  or, 
rather,  with  the   Minister  of  Justice ;    and  the  tenure  of  the 


THK  GOVERNMENT  OF  FRANCE.  175 

judicial  office,  except  in  the  case  of  Justices  of  the  Peace,  is 
during  good  behavior.  In  the  case  of  Justices  of  the  Peace, 
the  President  has  power  to  remove. 

Jury  Courts.  —  In  France,  the  ordinary  civil  courts  are 
without  juries ;  the  judges  decide  all  questions  of  fact  as  well 
as  all  questions  of  law.  There  are,  however,  special  jury  courts 
(cours  d'assises)  constituted  four  times  a  year  in  each  Department 
for  the  trial  of  crimes,  and  of  political  and  press  offences ;  and 
in  these  the  jury  is  sole  judge  of  the  guilt  or  innocence  of  the 
accused ;  the  judges  determine  the  punishment. 

Tribunal  of  Conflicts.  —  Between  the  two  sets  of  courts, 
the  administrative  and  the  ordinary,  there  stands  a  Tribunal  of 
Conflicts,  whose  province  it  is  to  determine  to  which  jurisdiction, 
the  administrative  or  the.  ordinary,  any  case  belongs  whose  proper 
destination,  or  forum,  is  in  dispute.  This  Tribunal  consists  of  the 
Minister  of  Justice  as  president,  of  three  State  Councillors 
chosen  by  their  colleagues,  and  of  three  members  of  the  Cassation 
Court  selected,  in  like  manner,  by  their  fellow-judges,  besides 
two  members  chosen  by  those  already  mentioned. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Aucoc,  Conferences  sur  I'administration  et  le  droit  administratif,  3d  ed., 

Paris,  1885. 

/•iu.ttunl  I  I'M*  tuny,  Les  Parlements  de  France. 

I !<  a  alien,  Leroy,  Administration  locale  en  France  et  en  Angleterre. 
]l<  rtln'IcHif/,  II.,  Traite  e"le"mentaire  de  droit  administratif,  8th  ed.,  Paris, 

1916. 

Block;  Dictionnaire  de  Tadministration  fran9aise,  Paris,  1887,  and  subse- 
quent annual  supplements. 

/:n,H,<}/,  J.  E.  C.,  France,  2  vols.,  London  and  N.  Y.,  1898. 
Borgeaud,  Charles,  Adoption  and  Amendment  of  Constitutions  in  Europe 

and  America.     Trans,  from  the  French  by  C.  D.  Hazen  and  J.  M. 

Vincent,  N.  Y.,  1895. 
Boutmy,  llJmile,  Studies   in  Constitutional  Law:    France  —  England  — 

United  States.     Trans,  from  the  French  by  E.  M.  Dicey,  London, 

1891. 

Boze'rian,  Etude  sur  la  revision  de  la  constitution. 
Bracq,  J.  C.,  France  under  the  Republic,  N.  Y.,  1910. 
BrismutJ,  J.,  History  of  French  Private  Law,  Boston,  1912. 


176          THE  GOVERNMENT  OF  FRANCE. 

Burgess,  J.  W.,  Political  Science  and  Constitutional  Law,  2  vols.,  Boston, 

1891. 
Cheruel,  Dictionnaire  historique  des  Institutions,  Moaurs,  et  Coutumes 

de  la  France,  2  vols.,  6th  ed.,  Paris,  1884. 
Cubertin,  Pierre  de,  The  Evolution  of  France,  under  the  Third  Republic, 

N.  Y.,  1897. 
Currier,  C.  F.  A.,  Constitutional  and  Organic  Laws  of  France,  1875-'89, 

Philadelphia  (Am.  Acad.  Pol.  Sci.),  1893. 
Demombynes,  Les  Constitutions  Europeennes,  2  vols.,  Paris,  1883.    Vol.  II., 

p.  1  et  seq. 
Dickinson,  Reginald,  Summary  of  the  Constitution  and  Procedure  of 

Foreign  Parliaments,  2d  ed. 

Ducrocq,  Cours  de  droit  administratif,  2  vols.,  Paris,  1881. 
Duguit,  L.,  Manuel  de  droit  constitutionnel,  3d   ed.,  Paris,  1918,  and 

Traite  de  droit  constitutionnel.     Paris,  1911. 
Dupriez,  L.,  Les  Ministres  dans  les  principaux  Pays  d'Europe  et  d'Ame- 

rique,  2  vols.,  Paris,  1892. 

Edwards,  M.  Betham,  France  To-Day,  2  vols.,  London,  1892-'94. 
Esmein,  A.,  Elements  du  droit  constitutionnel,  6th  ed.,  Paris,  1914. 
Perron,  H.  de,  Institutions  municipales  et  provinciales  compares,  Paris, 

1884. 

Gazzi,  L.,  LTnterpellation  k  1'assemblee  nationale.     Marseilles,  1909. 
Goodnow,  Frank  J.,  Comparative  Administrative  Law,  2  vols.,  N.  Y., 

1893. 

Haas,  C.  P.  M.,  Administration  de  la  France,  4  vols.,  2d  ed.,  Paris,  1861. 
Hanotaux,  Gabriel,  Contemporary  France,  4  vols.,  N.  Y.,  1903-'09. 
Jeze,  G.,  Les  principes  gene"raux  du  droit  administratif,  Paris,  1904. 
Kitchin,  G.  W.,  History  of  France,  3  vols.,  Oxford,  1881-'85. 
Laferriere,  E.,  Traite  de  la  Juridiction  administrative  et  des  recours  con- 

tentieux,  2  vols.,  Paris,  1887. 
Lebon,  Andre",  Franzosisches  Verf  assungsrecht,  Tubingen,  1909  ;  Modern 

France  {Story  of  the  Nations  Series),  London  and  N.  Y.,  1896  ;  and 

(with  P.  Pelet)  France  As  It  Is,  London,  1888. 
Lowell,  A.  Lawrence,  Governments  and  Parties  in  Continental  Europe, 

2  vols.,  Boston,  1896. 

Munro,  W.  B.,  The  Government  of  European  Cities,  N.  Y.,  1909. 
Naquet,  A.,  The  French  Electoral  System,  N.  A.  Rev.,  vol.  155. 
Ogg,  F.  A.,  The  Governments  of  Europe,  N.  Y.,  1913. 
Pierre,  Eugene,    Traite"  de  droit  politique,  electoral  et  parlementaire, 

Paris. 
Poincare,  Raymond,  How  France  is  Governed.     Eng.  Trans.,  London 

and  N.  Y.,  1913. 


THE   GOVKKNMKNT    <>F    FKANCE.  177 

Scherer,  Edmond,  La  Democratic  et  la  France. 

Shaw,  Albert,  Municipal  Government  in  Continental  Europe,  N.  Y.,  1895. 

Stephen,  Sir  James,  Lectures  on  the  History  of  France,  2  vols.,  3d  ed., 
London,  1857. 

Tocqueville,  Alexis  de,  L'Ancien  Regime  et  la  Revolution,  and  Recollec- 
tions (Trans.  London,  1896). 

I  'illrneuve,  M.  de  la  Bigne  de,  filaments  de  Droit  constitutionnel  f ran^ais, 
Paris,  1892. 


VIII. 
THE   GOVERNMENT   OF  GREAT   BRITAIN. 


I.   CENTRAL  GOVERNMENT. 

Origin  of  the  English  Constitution.  —  The  history  of  gov- 
ernment in  England  begins  with  the  primitive  politics  of  the 
Teutonic  races.  Those  great  race  movements  of  the  fifth  cen- 
tury which  put  the  Frank  into  the  Roman's  place  in  Gaul  put 
the  Angles  and  Saxons  in  the  place  of  the  Roman  in  Britain. 
The  first  Teutons  who  made  a  permanent  settlement  in  Britain 
(A.D.  449)  did  not  find  the  Roman  there;  the  imperial  legions 
had  been  withdrawn  from  the  island  almost  forty  years  before 
(A.D.  410)  to  serve  the  Empire  in  her  contest  with  invading 
hosts  nearer  home.  But  the  new-comers  from  the  lowlands 
about  the  Elbe  and  the  Weser  found  there  many  splendid  and 
impressive  monuments  of  the  civilization  which  everywhere 
kept  company  with  Roman  dominion.  What  effect  these  evi- 
dences of  the  displaced  system  of  Rome  may  have  had  upon 
the  rough  seamen  who  made  the  new  conquest,  or  how  much  of 
Roman  influence  may  have  remained  with  the  people  of  Britain 
to  be  handed  on,  in  faint  reproduction,  to  future  masters  of  the 
island,  it  is  impossible  to  say.  Certainly,  however,  there  was 
nothing  of  Rome's  handiwork  in  the  forms  of  government  which 
the  Teutons  established  at  the  basis  of  English  politics.  Those 
forms  were  their  own.  They  were  reproductions,  as  nearly  as  the 
conditions  of  conquest  would  permit,  of  the  institutions  which 
the  Romans  had  seen  in  use  among  their  redoubtable  foes  beyond 
the  Rhine  before  ever  the  Empire  had  suffered  serious  inroad. 

Primitive  Teutonic  Institutions.  —  These  institutions  had 
none  of  the  national  character  which  they  were  in  the  course  of 

178 


THE   GOVERNMENT    OF    GREAT    BRITAIN.  1  T(.» 

time  to  acquire.  They  illustrated  the  well-known  historical  se- 
quence, in  which  local  tribal  government  always  precedes  central 
national  government.  Men  governed  themselves  as  families  and 
small  communities  before  they  were  governed  as  nations.  For 
the  Germans  of  that  early  time  the  village  was  the  centre  of 
political  life ;  national  organization  they  at  first  scarcely  knew 
except  for  purposes  of  war ;  kingship  among  them  was  honorary 
and  typical  rather  than  real.  The  freemen  of  each  little  com- 
munity in  times  of  peace  directed  their  own  affairs  with  quite 
absolute  freedom  in  village  meeting.  Even  in  war  each  freeman 
had  a  vote  in  the  distribution  of  booty  and  could  set  his  own  im- 
perative individuality  as  a  more  or  less  effectual  check  upon  the 
wilfulness  of  his  commander  (pages  94-98).  A  very  fierce 
democratic  temper  seems  to  have  ruled  in  the  politics  of  that 
rough  primitive  time.  And  it  is  not  at  all  likely  that  this  temper 
was  a  whit  abated  among  the  hardy  pirates,  as  tempestuous  as 
the  northern  waters  which  they  braved,  who  founded  new  tribal 
kingdoms  in  Britain  in  the  fifth  century. 

Institutional  Changes  effected  by  Conquest.  —  Concerted, 
organized  movements  for  conquest  did  the  same  thing  for  the 
Angles  and  Saxons  that  they  did  for  the  Franks  (page  102) : 
they  made  real  kingship  necessary  as  an  abiding  basis  for  national 
organization.  The  military  leader  was  of  necessity  constituted 
permanent  king,  the  same  cohesion  being  needed  to  follow  up 
and  enjoy  conquest  that  had  been  needed  to  effect  it.  But  the 
new  kingdoms  were  at  first  quite  small,  —  small  as  the  island 
was,  it  held  many  such,  —  and  the  internal  organization  of  the 
tribes  was  probably  not  deeply  affected  by  the  fact  that  a  throne 
had  been  set  up.  The  people  gathered,  as  was  their  long-time 
wont,  into  more  or  less  compact  but  always  small  communities, 
round  about  the  homesteads  and  villages  the  Romans  had  built ; 
enjoying  their  lands  according  to  some  system  of  ownership 
which  left  the  chief  pastures  and  the  principal  water  supply 
open  to  use  by  all  and  reserved  only  the  arable  land  to  separate 
use  by  individuals.  Justice  and  government  still  proceeded,  as 
of  old,  at  first  hand,  from  the  meeting  of  village  freemen. 

The  Hundred-moot  and  the  Folk-moot.  —  But  there  was, 
besides,  a  wider  organization,  possessing  features  which  possibly 


180  THE   GOVERNMENT    OF   GREAT   BRITAIN. 

had  not  been  quite  so  fully  and  symmetrically  developed  and 
integrated  in  earlier  practice.  Communities  were  combined  into 
'hundreds,'  and  it  was  a  combination  of  'hundreds/  doubtless, 
that  constituted  the  little  kingdoms  of  the  first  periods  of  Saxon 
dominion,  —  some  of  which  at  any  rate  became  the  '  shires '  or 
counties  of  the  later  times  when  all  England  was  united  under 
one  rule.  The  '  hundred,'  like  the  smaller  units  of  the  system, 
the  several  villages  or  communities,  had  its  '  moot '  or  meeting, 
composed  of  the  priest,  the  reeve,  and  four  men  from  each 
township  within  its  limits.  The  principal  functions  of  this 
hundred-moot  were  "those  of  a  court:  for  the  hundred  was  dis- 
tinctively a  judicial  rather  than  an  administrative  district.  Above 
the  hundred-moot,  at  the  top  of  the  primitive  system,  was  the 
general  folk-moot,  a  general  assembly  of  the  freemen,  playing 
the  same  part  as  tribal  or  national  council  that  Tacitus  had 
seen  similar  assemblies  play  in  Germany  in  the  first  century. 

English  Kingdom  and  English  County. — When  the  Eng- 
lish kingdoms  were  many,  each,  probably,  had  its  general  council, 
which  sat  under  the  presidency  of  the  king,  and  which  advised 
with  him  concerning  the  common  interests  with  some  at  least  of 
the  old  authoritativeness  which  its  conclusions  had  possessed  be- 
fore the  new  kingship  had  been  created.  When  England  had 
been  made  a  single  kingdom,  in  the  later  days  when  the  Norman 
conquest  was  drawing  near,  these  divisions  of  the  land,  these 
kingdoms  which  had  once  had  independent  political  life,  sank  to 
the  role  of  counties,  and  their  folk-moots,  which  had  once  been 
national  assemblies,  became  mere  shire-moots,  mere  county  courts, 
presided  over  by  the  sheriff  as  representative  of  the  king,  the 
bishop  as  representative  of  mother  Church,  and  the  ealdorman  as 
representative  of  the  tribe,  and  composed  of  the  landowners  of 
the  shire,  the  reeve,  priest,  and  four  men  from  each  township, 
twelve  representatives  from  each  hundred,  and  all  officials. 

The  Witenagemot. — National  authority,  meantime,  had 
passed,  so  far  as  it  had  passed  to  any  assembly,  to  an  assembly  of 
another  kind,  to  a  great  council  called  the  Witenagemot,  or  Assem- 
bly of  the  Wise.  We  have  no  certain  knowledge  of  the  exact 
character  of  this  famous  national  body ;  but  we  are  probably 
warranted  in  concluding  that  it  was  formed  more  or  less  closely 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  181 

upon  the  model  of  the  assemblies  which  it  had  supplanted.  The 
national  councils  of  the  smaller  kingdoms  of  the  earlier  time, 
which  had  now  shrunk  into  mere  shire  courts,  handed  on  their 
functions  of  general  counsel,  and  in  theory  also,  it  may  be,  their 
organization,  to  the  Witenagemot.  Possibly  it  was  within  the 
right  of  every  freeman  to  attend  and  vote  in  this  great  meeting 
of  the  nation ;  but  as  a  matter  of  fact,  its  membership  was  limited, 
apparently  from  the  first,  to  the  chief  men  of  the  shires  and  of 
i  the  royal  household.  To  it  came  the  sheriffs,  the  ealdormen,  the 
bishops,  and  the  chief  officers  and  thegns  about  the  king's  person. 
When  the  king  wished  a  veritable  national  council  he  would 
sometimes  summon  the  moots  of  all  the  shires  to  meet  him  in 
grand  Mycel-gem6t  at  some  central  point  in  the  kingdom  and  de- 
clare their  assent  to  his  laws.  This  he  did  to  spare  himself  the 
trouble  of  taking  his  laws  to  each  shire  moot  in  turn,  as  it  had 
once  been  the  king's  custom  to  do. 

Powers  of  the  Witenagemot.  —  The  powers  of  the  Witen- 
agemot were  very  great  indeed,  —  in  theory  always,  perhaps  at 
first  in  practice  also.  To  it  belonged  the  old  popular  prerogative 
of  electing,  or  upon  occasion  deposing,  the  king.  It  gave  or  with- 
held its  consent  to  grants  of  the  public  land.  It  was  the  supreme 
court  of  the  kingdom,  for  both  civil  and  criminal  cases.  It 
shared  with  the  king  the  lawmaking  and  appointing  power,  and 
joined  him  in  the  imposition  of  taxes.  As  the  king  grew  in  power 
and  influence,  the  cooperation  of  the  Witenagemot  in  judgment 
and  legislation  became  more  and  more  a  matter  of  form  only ; 
but  always  there  were  two  or  three  yearly  meetings  of  the  body, 
and  its  action,  though  in  most  things  merely  formal  and  perfunc- 
tory, was  yet  a  necessary  and,  symbolically,  a  valuable  form, 
preserving,  as  it  did,  the  memory,  if  no  more,  of  the  nation's 
freedom. 

The  Norman  Feudalization.  —  With  the  Norman  conquest 
came  profound  changes  in  the  government  of  England.  The  chief 
officers  of  the  shire  became  royal  officers  merely,  the  ecclesiasti- 
cal authority  being  set  apart  to  itself,  and  the  ealdorman  being 
shut  out  from  all  administrative  functions.  The  land  William 
confiscated  in  vast  quantities,  in  the  ruthless  thoroughness  of  his 
conquest,  because  of  the  stubborn  resistance  of  its  English  own- 


182  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

ers,  and  granted  away  in  new  estates  to  Normans  or  to  submis- 
sive Englishmen,  to  be  held  in  feudal  subjection  to  himself. 
The  feudal  system,  so  familiar  to  the  historian  of  the  Continent, 
with  its  separated  baronial  jurisdictions  and  its  personal  depend- 
encies of  vassal  upon  lord  and  of  lord  upon  overlord,  was  per- 
fected in  England  also.  Township  courts  in  most  places  gave 
way  to  baronial  courts ;  hundred-moots  lost  their  one-time  impor- 
tance ;  and  all  judicial  power  that  did  not  pass  into  the  hands  of 
feudal  lords  tended  to  pass  to  the  court  of  the  sheriff,  the  king's 
lieutenant  in  the  shire.  Still  William  kept  the  barons  under ;  he 
did  not  suffer  their  power  to  become  threatening  to  his  own,  but 
kept  them  always  dependent  upon  himself  for  the  continued  exer- 
cise of  their  privileges. 

The  Great  Council  of  the  Norman  Kings.  —  More  impor- 
tant still,  he  preserved,  with  modifications  to  suit  his  change  of 
system,  the  national  assembly  of  the  Saxon  polity.  He  claimed 
to  come  to  the  throne  by  natural  right  and  legal  succession,  not 
by  conquest,  and  he  sought  to  continue,  so  far  as  might  be,  the 
constitution  under  which  he  claimed  succession.  He  sought  and 
obtained  formal  election  to  the  throne,  as  nearly  as  possible  in 
accordance  with  the  ancient  forms;  and,  his  throne  secure,  he 
endeavored  to  rule  within  the  sanction  of  ancient  custom.  He 
maintained  the  Witenagemot.  But  its  character  greatly  changed 
under  his  hands.  Revolt  hardened  his  rule,  to  the  exclusion 
of  the  old  national  element  from  the  central  assembly  of  the 
realm.  As  the  new  organization  of  the  country  assumed  a  feu- 
dal character  of  the  Norman  type,  that  new  character  became 
mirrored  in  the  composition  of  the  royal  council.  The  Mycel- 
gemdt  merged  in  the  Great  Council  (magnum  or  commune  con- 
cilium) of  the  king's  tenants-in-chief.  To  it  came  at  first,  besides 
the  earls,  the  barons,  and  the  knights,  who  either  in  fact  or  in 
feudal  theory  held  their  lands  of  the  king,  the  archbishops  also, 
the  bishops,  and  the  abbots ;  subsequently,  however,  even  these 
ecclesiastical  members  were  admitted  only  as  barons,  as  holding 
land  of  the  king  and  so  members  of  the  feudal  hierarchy.  In 
theory,  it  would  seem,  every  landowner  was  entitled  to  claim  a 
seat  in  this  Council ;  it  was  meant  to  hold  the  place  of  a  national 
assembly  which  could  speak  for  the  governing  classes ;  but  in 


THE    GOVERNMENT    OF    GREAT    BRITAIN.  183 

fact  only  the  greater  barons  and  churchmen  as  a  rule  attended, 
and  '  tenure  by  barony  '  became  at  length  the  only  valid  title  to 
membership.  The  development  of  the  Great  Council  of  the 
Norman  kings  is  the  central  subject  of  early  English  constitu- 
tional history ;  for  from  it  may  be  said  to  have  sprung  the  whole 
effective  organization  of  the  present  government  of  England.  Out 
of  it,  directly  or  indirectly,  by  one  process  or  another,  have  been 
evolved  Parliament,  the  Cabinet,  and  the  courts  of  law. 

The  Feudal  System  in  England.  —  England  was  not  feudalized 
by  the  Normans.  Feudalization  had  grown  there  under  Saxon  and  Dane 
as  elsewhere  under  Frank  and  Goth.  Society  in  England,  as  on  the 
Continent,  had  divided  into  ranks  ot  nobles,  freemen,  and  slaves  bound 
together  by  personal  fealty  and  the  principles  of  land  ownership.  What 
the  Norman  did  was  to  give  new  directions  to  the  indigenous  growth  of 
feudalism.  The  system  had  not  gone  to  such  lengths  of  disintegration 
in  England  as  it  afterwards  went  on  the  Continent,  and  William  the 
Conqueror's  first  care  when  compacting  his  power  in  the  island  was  to 
subordinate  all  feudal  elements  permanently  to  the  Crown.  He  saw  to 
it,  by  the  unhesitating  use  of  his  great  power,  that  no  baron  should  be 
able  to  cope  with  the  king  without  wide  combination  with  other  barons, 
such  as  watchful  kings  could  probably  always  prevent ;  and  he  dulled 
the  edge  of  hostile  feeling  by  giving  to  the  greater  barons  of  the  kingdom 
a  function  of  weight  in  the  management  of  affairs  by  bringing  them  into 
peaceful  and  legitimate  combination  in  the  Great  Council,  which  he  called 
together  three  times  every  year,  and  whose  advice  he  never  refused  at 
least  to  hear.  The  Council  retained,  formally  at  any  rate,  the  right  to 
choose  the  king,  and  all  laws  were  declared  to  be  enacted  by  and  with  its 
advice  and  consent. 

Character  of  English  Institutional  Growth.  —  It  has  been 
noted  as  a  leading  characteristic  of  the  constitutional  history  of 
England  that  her  political  institutions  have  been  incessantly  in 
process  of  development,  a  singular  continuity  marking  the  whole 
of  the  transition  from  her  most  ancient  to  her  present  forms  of 
government.  It  is  not  a  history  of  breaks  or  of  new  establish- 
ments, or  of  successive  new  creations  of  instrumentalities  of 
legislation  and  administration :  all  the  way  through  it  is  a  his- 
tory of  almost  insensible  change,  of  slow  modification,  and  of 
unforced,  almost  of  unconscious,  development.  Very  great  con- 
trasts appear  between  the  character  of  her  government  in  one 
age  and  its  character  in  another  age  distant  one  or  more  ceix 


184  THE    GOVERNMENT    OF    GREAT   BRITAIN. 

turies  from  the  first;  but  it  is  very  difficult  to  perceive  any 
alteration  at  all  when  comparison  is  made  from  generation  to 
generation.  Almost  no  changes  can  be  given  exact  dates :  each 
took  place  '  about '  such  and  such  a  year,  or  in  this  or  that  long 
reign.  The  whole  process,  therefore,  is  one  which  may  be  out- 
lined in  brief  epitome :  its  stages  are  long,  its  features  large,  its 
details  unessential  to  clearness. 

The  Course  of  Development. — In  briefest  summary  the 
facts  are  these :  the  Great  (or  National)  Council  itself  became  the 
Parliament  of  the  realm ;  those  of  its  members,  as  originally  con- 
stituted, who  were  state  officers  and  chief  officials  of  the  court 
became  a  Permanent  royal  Council,  out  of  which,  in  course  of 
time  grew  the  more  modern  Privy  Council  and  at  length  the  Cab- 
inet ;  and  whose  members  of  the  Permanent  Council  whose  duties 
were  financial  and  judicial  gradually  drew  apart  from  the  rest  for 
the  exercise  of  their  functions,  their  work  being  finally  divided 
among  them  according  to  its  nature,  and  the  several  bodies  into 
which  they  thus  fell  apart  becoming,  in  the  end,  the  courts  of 
Exchequer,  of  Chancery,  and  of  common  law. 

The  Permanent  Council.  —  The  body  of  state  and  court 
officers  whom  the  king  kept  always  about  him  as  his  '  Ordinary ' 
or  Permanent  Council  were  originally  all  of  them  members  of  the 
Great  Council  and  seem  at  first  to  have  acted  as  a  sort  of  "  com- 
mittee, or  inner  circle,"  of  that  greater  body.  The  Great  Council 
met  but  three  times  in  the  year ;  its  organization  was  not  perma- 
nent ;  its  membership  varied,  both  numerically  and  personally, 
from  year  to  year.  The  officers  of  the  permanent  service,  on  the 
other  hand,  were  always  within  easy  reach  of  consultation ;  they 
were  in  a  certain  sense  picked  men  out  of  the  larger  body  of  the 
national  Council ;  it  was  natural  that  they  should  be  consulted 
by  the  king  and  that  their  advice,  given  in  their  collective  ca- 
pacity as  a  smaller  council,  should  carry  with  it  the  weight  of 
their  connection  with  the  more  authoritative-  Great  Council.  As 
a  matter  of  fact  at  any  rate,  they  acquired  powers  almost  coinci- 
dent with  those  of  the  national  body  itself.  Their  powers  came, 
indeed,  to  possess  an  importance  superior  even  to  those  of  the 
more  august  assembly,  being  exercised  as  they  were,  not  inter- 
mittently or  occasionally,  but  continuously  ;  not  with  a  mere  out- 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  185 

side  acquaintance  with  the  posture  of  affairs,  but  with  an  inside 
intimacy  of  knowledge. 

Composition  of  Permanent  Council.  —  Under  the  Nor- 
man kings  the  membership  of  the  Permanent  Council  consisted, 
usually,  of  the  two  archbishops  (of  Canterbury  and  of  York),  the 
Justiciar,  the  Treasurer,  the  Chancellor,  the  Steward,  the  Mar- 
shall, the  Chamberlain,  and  the  Butler,  with  the  occasional  addi- 
tion of  other  officials,  such  as  the  king's  Sergeant,  and  of  such 
bishops  and  barons  as  the  sovereign  saw  fit  from  time  to  time  to 
summon.  There  was,  however,  no  fixed  rule  as  to  its  composition. 
Possibly  every  baron,  as  a  member  of  the  Great  Council,  could,  if 
he  had  so  chosen,  have  attended  the  sittings  of  this  section  of  the 
Great  Council  also,  which,  while  the  Great  Council  was  not  in 
session,  masqueraded  as  its  deputy  and  proxy.  Practically,  it 
would  seem  always,  as  a  rule,  to  have  lain  within  the  king's 
choice  to  constitute  it  how  he  would. 

The  Powers  of  the  Permanent  Council  were  enormous : 
were  as  large  as  those  of  the  king  himself,  who  constituted  it 
his  administrative,  judicial,  and  legislative  agent.  Its  "  work 
was  to  counsel  and  assist  the  king  in  the  execution  of  every 
power  of  the  crown  which  was  not  exercised  through  the  ma- 
chinery of  the  common  law " ; l  and  "  the  king  could  do  nearly 
every  act  in  his  Permanent  Council  of  great  men  which  he  could 
perform  when  surrounded  by  a  larger  number  of  his  nobles ; 
except  impose  taxes  on  those  nobles  themselves." 2  But  the  Per- 
manent Council  very  early  ceased  to  act  as  a  whole  in  the  dis- 
charge of  all  its  functions  alike.  Itself  a  committee,  it  presently, 
in  its  turn,  began  to  Split  up  into  committees. 

The  Law  Courts.  — Men  specially  learned  in  the  law  were 
brought  into  its  membership,  the  later  kings  not  hesitating,  when 
the  needs  of  the  service  demanded,  to  introduce  commoners, 
as  the  Council  drifted  away  from  even  its  nominal  connection  with 
the  Great  Council ;  and  to  these  the  financial  and  judicial  func- 
tions of  the  Crown  were  more  and  more  exclusively  entrusted. 
(Compare  page  141.)  It  was  not  long  before  (a)  a  separate  Court 
of  Exchequer,  which  was  at  first  charged  principally  with  the 

1  Stubbs,  Constitutional  History  of  England,  Vol.  III.,  p.  252. 

2  A.  V.  Dicey,  The  Privy  Council,  p.  ii. 


186  THE    GOVERNMENT   OF    GREAT   BRITAIN. 

audit  of  finance  accounts,  had  been  permanently  assigned  its 
special  '  barons '  as  Justices,  and  had  acquired  jurisdiction  over 
all  cases  in  which  the  king  was  directly  concerned ;  (6)  another 
special  bench  of  judges  received,  as  a  Court  of  Common  Pleas, 
jurisdiction  over  all  civil  cases  between  subject  and  subject;  (c) 
still  another  came  to  figure  as  a  supreme  court,  or  Court  of  King's 
Bench,  which  always  accompanied  the  sovereign  wherever  he 
went,  which  was  in  theory  presided  over  by  the  king  himself,  and 
which  was  empowered  to  supervise  local  justice  and  itself  control 
all  cases  not  specially  set  apart  for  the  hearing  of  other  courts ;  and 
(d)  the  Chancellor,  who  had  once  been  merely  president,  in  the 
king's  absence,  of  the  Permanent  Council  when  it  heard  appeals 
in  its  judicial  capacity,  absorbed  to  himself,  in  his  Court  of 
Chancery,  the  whole  of  that  so-called  '  equitable  '  function  of  the 
Crown  by  virtue  of  which  the  king  granted  relief  to  suitors  for 
whose  cases  the  common  law  provided  no  adequate  process.  The 
Chancellorship  was  thus  put  in  the  way  of  attaining  to  its  later- 
day  partial  ascendency  over  the  '  courts  of  law.'  This  process  of 
the  differentiation  and  development  of  the  courts  began  in  the  early 
years  of  the  twelfth  century  and  may  be  said  to  have  been  com- 
pleted by  the  middle  of  the  fourteenth. 

Parliament.  —  Meantime  the  national  body,  the  Great 
Council,  from  which  the  Permanent  Council  and  courts  had  been 
derived,  had  had  its  own  expansions  and  changes  of  form  and  had 
taken  on  a  new  character  of  the  utmost  significance.  Not  greatly 
altered  in  its  composition  during  the  century  which  followed  the 
Norman  conquest,  the  Great  Council  was  profoundly  affected  by 
the  outcome  of  Magna  Charta  (A.D.  1215)  and  the  momentous 
constitutional  struggles  which  followed  it.  It  was  then  that  the 
principle  of  representation  was  first  introduced  into  the  constitu- 
tion of  Parliament  and  that  commoners  as  well  as  nobles  were 
given  seats  in  the  national  assembly.  The  archbishops,  bishops, 
and  abbots  attended  as  of  course,  as  always  before,  and  the  earls 
and  greater  barons  held  themselves  equally  entitled  to  be  sum- 
moned always  by  special  personal  summons ;  but  the  lesser  barons, 
who  formerly  had  been  called  to  the  Council,  not  by  personal 
summons,  but  only  by  a  general  summons  addressed  to  them, 
along  with  all  tenants-in-chief,  through  the  sheriffs  of  the  counties, 


THE  GOVERNMENT  OF   GREAT  BRITAIN.  187 

had  given  over  attending  because  of  the  expense  and  inconven- 
ience of  the  privilege, tand  were  accordingly  no  longer  called. 
Their  place  was  filled  by  representation.  Writs  addressed  to  the 
sheriffs  commanded  the  election  of  representatives  of  the  lower 
clergy  and,  more  important  still,  of  representatives  (knights)  of 
the  shires  and  (burgesses)  of  the  towns.  The  Parliament  which 
Edward  I.  summoned  in  1295  contained  all  these  elements  and  es- 
tablished the  type  for  the  composition  of  all  future  Parliaments. 

In  the  fourteenth  clause  of  Magna  Charta  John  was  made  to 
promise  that,  besides  summoning  the  archbishops,  bishops,  abbots,  earls, 
and  greater  barons  severally,  by  special  personal  letters,  he  would  sum- 
mon all  lesser  barons  also  by  a  general  summons,  through  the  sheriffs  and 
bailiffs.  But  this  general  summons  failed  of  the  desired  effect. 

Representatives  from  the  towns  were  summoned  first  in  1266  by 
Earl  Simon  of  Montfort,  who  knew  that  he  could  count  upon  the  support 
of  the  commons  of  England  in  his  contest  with  the  king,  Henry  III.,  and 
who  called  burgesses  to  the  Parliament  which  he  constituted  during  the 
brief  period  of  his  supremacy  in  order  to  give  open  proof  of  that  support. 
Edward  I.  followed  Montfort's  example  in  1296,  not  because  he  was  de- 
liberately minded  to  form  a  truly  representative  assembly  as  a  wise  step 
in  constitutional  development,  but  because  he  wanted  money  and  knew 
that  taxes  would  be  most  readily  paid  if  voted  by  an  assembly  represent- 
ing all  classes. 

Representatives  from  the  shires  (knights)  had  often  been  called 
to  Parliament  before  1265.  Step  by  step,  first  one  element  of  the  nation 
and  then  another  had  been  introduced  into  Parliament:  first  the  lesset 
barons,  by  general  summons,  —  only,  however,  to  drop  out  again,  —  then 
the  gentry  of  the  shires  by  election  in  the  counties,  finally  the  burghers 
of  the  towns  by  similar  election  in  county  court. 

Genesis  of  the  Two  Houses.  —  Such  a  body  as  the  Parlia- 
ment summoned  by  Edward  was,  however,  too  conglomerate,  too 
little  homogeneous  to  hold  together.  It  did  not  long  act  as  a  single 
assembly ;  but  presently  fell  apart  into  two  '  houses/  Had  the 
lower  clergy  continued  to  claim  representation,  there  might  and 
probably  would  have  been  three  houses  instead  of  two.  But, 
instead  of  setting  up  a  separate  house  in  the  civil  Parliament,  the 
clergy  drew  apart  for  the  creation  of  an  entirely  distinct  body, 
which,  under  the  name  of  'Convocation/  was  to  constitute  a 
separate  ecclesiastical  parliament,  devoting  itself  exclusively  to 
the  government  of  the  Church.  Their  share  in  the  management 


188  THE   GOVERNMENT   OF    GREAT   BRITAIN. 

of  temporal  affairs  they  left  altogether  to  the  ( spiritual  lords/  the 
few  greater  magnates  of  the  Church  who  retained  their  places  in 
the  national  council,  and  to  such  lay  representatives  as  the  clergy 
could  assist  in  electing  to  the  lower  house. 

There  were  left,  therefore,  in  Parliament  two  main 
elements,  lords  and  commoners.  The  lords,  to  whom  the  arch- 
bishops, bishops,  and  abbots  adhered  by  immemorial  wont,  formed 
a  house  to  themselves,  the  House  of  Lords.  The  commoners 
from  the  towns,  who  were  soon  joined  by  the  middle  order  of 
gentry,  the  knights  of  the  shires,  who  were  neither  great  lords 
summoned  by  personal  summons  nor  yet  commoners,  formed  the 
other  house,  the  House  of  Commons.  These  changes  also  were 
completed  by  the  middle  of  the  fourteenth  century.  Parliament 
was  by  that  time,  outwardly,  just  what  it  is  now. 

The  Privy  Council.  —  The  Great  Council  and  its  direct 
heir,  Parliament,  were  not  a  little  jealous  of  the  enormous  powers 
wielded  by  the  preferred  counsellors  of  the  king  whom  he  main- 
tained in  permanent  relations  of  confidence  with  himself,  and 
through  whom  he  suffered  to  be  exercised  some  of  the  greatest 
of  the  royal  prerogatives.  Especially  did  the  arrangement  seem 
obnoxious  when  the  vitality  of  the  Permanent  Council  passed 
to  a  still  smaller  <  Privy '  Council.  This  body  was  to  the  Per- 
manent Council  what  the  Permanent  Council  had  been  to  the 
Great  Council.  It  was  still  another  "  inner  circle."  It  emerged 
during  the  reign  of  Henry  VI.  (1422-1461).  The  Permanent 
Council  had  become  too  large  and  unwieldy  for  the  continuance 
of  its  intimate  relations  with  the  sovereign ;  it  could  no  longer 
be  used  as  a  whole  for  purposes  of  private  advice  and  resolution ; 
and  the  king  separated  from  the  f  ordinary '  councillors  certain 
selected  men  whom  he  constituted  his  Privy  Council,  binding 
them  to  himself  by  special  oaths  of  fidelity  and  secrecy.  From 
that  moment  the  Permanent  Council  was  virtually  superseded,  and 
the  Privy  Council  became  the  chief  administrative  and  govern- 
ing body  of  the  realm. 

The  Privy  Council  assumes  Judicial  Powers.  —  Many  of 
the  judicial  prerogatives  which  really  belonged  to  the  king  when 
sitting  in  his  Great  Council,  or  Parliament,  had  been  claimed  for 
the  king's  Permanent  Council:  hence  the  distinct  law  courts 


THE   GOVERNMENT   OF    GREAT   BRITAIN.  189 

which  were  developed  from  its  midst  (sec.  847) ;  and  the  same 
rights  of  exercising  the  powers  of  a  court  which  had  been 
assumed  by  the  Permanent  Council  were  in  the  later  time  arro- 
gated to  itself  by  the  Permanent  Council's  proxy,  the  Privy 
Council.  Out  of  it  came,  in  course  of  time,  the  well-remembered 
Council  of  the  North,  the  hated  Star  Chamber,  and  the  odious 
High  Commission  Court,  which  were  not  abolished  until  1641, 
when  that  great  revolution  had  fairly  set  in,  which  was  to  crush 
arbitrary  executive  power  forever  in  England,  and  to  usher  in  the 
complete  supremacy  of  Parliament. 

Origin  of  the  Cabinet.  —  Meanwhile,  long  before  the  parlia- 
mentary wars  had  come  to  a  head,  the  same  causes  that  had 
produced  the  Permanent  and  Privy  Councils  had  again  asserted 
their  strength  and  produced  the  Cabinet,  still  a  -third  "  inner 
circle,"  this  time  of  the  Privy  Council ;  a  small  body  selected  for 
special  confidence  by  the  king  from  the  general  body  of  his 
counsellors,  and^meetiug  him,  not  in  the  larger  council  chamber, 
but  in  a  '  cabinet/  or  smaller  room,  apart.  The  Privy  Council 
had,  in  its  turn,  become  "too  large  for  despatch  and  secrecy. 
The  rank  of  Privy  Councillor  was  often  bestowed  as  an  honorary 
distinction  on  persons  to  whom  nothing  was  confided,  and  whose 
opinion  was  never  asked.  The  Sovereign,  on  the  most  important 
occasions,  resorted  for  advice  to  a  small  knot  of  leading  ministers. 
The  advantages  and  disadvantages  of  this  course  were  early 
pointed  out  by  Bacon,  with  his  usual  judgment  and  sagacity ;  but 
it  was  not  till  after  the  Restoration  that  the  interior  Council 
began  to  attract  general  notice.  During  many  years  old-fashioned 
politicians  continued  to  regard  the  Cabinet  as  an  unconstitutional 
and  dangerous  board.  Nevertheless,  it  constantly  became  more 
and  more  important.  It  at  length  drew  to  itself  the  chief  execu- 
tive power,  and  has  now  been  regarded  during  several  generations 
as  an  essential  part  of  our  polity.  Yet,  strange  to  say,  it  still 
continues  to  be  altogether  unknown  to  the  law.  The  names  of 
the  noblemen  and  gentlemen  who  compose  it  are  never  officially 
announced  to  the  public ;  no  record  is  kept  of  its  meetings  and 
resolutions;  nor  has  its  existence  ever  been  recognized  by  any 
Act  of  Parliament." l 

1  Macaulay,  History  of  England,  Vol,  I.,  pp.  197, 198  (Harper's  ed.,  1849). 


190  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

The  Development  of  the  Cabinet.  —  The  Cabinet  first  comes 
distinctly  into  public  view  as  a  preferred  candidate  for  the  highest 
executive  place  in  the  reign  of  Charles  II.  It  is  now  the  central 
body  of  the  English  Constitution.  The  steps  by  which  it  ap- 
proached its  present  position  are  thus  summarized  by  a  distin- 
guished English  writer :  — 

"  (1)  First  we  find  the  Cabinet  appearing  in  the  shape  of  a 
small,  informal,  irregular  Camarilla,  selected  at  the  pleasure  of 
the  Sovereign  from  the  larger  body  of  the  Privy  Council,  con- 
sulted by  and  privately  advising  the  Crown,  but  with  no  power 
to  take  any  resolutions  of  State,  or  perform  any  act  of  government 
without  the  assent  of  the  Privy  Council,  and  not  as  yet  even 
commonly  known  by  its  present  name.  This  was  its  condition 
anterior  to  the  reign  of  Charles  I. 

"  (2)  Then  succeeds  a  second  period,  during  which  this  Coun- 
cil of  advice  obtains  its  distinctive  title  of  Cabinet,  but  without 
acquiring  any  recognized  status,  or  permanently  displacing  the 
Privy  Council  from  its  position  of  de  facto  as  well  as  de  jure  the 
only  authoritative  body  of  advisers  of  the  Crown.  (Keign  of 
Charles  I.  and  Charles  II.,  the  latter  of  whom  governed  during 
a  part  of  his  reign  by  means  of  a  Cabinet,  and  towards  its  close 
through  a  l  reconstructed '  Privy  Council.) 

"  (3)  A  third  period,  commencing  with  the  formation  by 
William  III."  of  a  ministry  representing,  not  several  parties, 
as  often  before,  but  the  party  predominant  in  the  state,  "the 
first  ministry  approaching  the  modern  type.  The  Cabinet, 
though  still  remaining,  as  it  remains  to  this  day,  unknown  to 
the  Constitution,"  had  "  now  become  de  facto,  though  not  de  jure, 
the  real  and  sole  supreme  consultative  council  and  executive  au- 
thority in  the  State."  It  was  "  still,  however,  regarded  with 
jealousy,  and  the  full  realization  of  the  modern  theory  of  minis- 
terial responsibility,  by  the  admission  of  its  members  to  a  seat  in 
Parliament,"  was  "  only  by  degrees  effected. 

"  (4)  Finally,  towards  the  close  of  the  eighteenth  century,  the 
political  conception  of  the  Cabinet  as  a  body,  —  necessarily  con- 
sisting (a)  of  members  of  the  Legislature  (b)  of  the  same  politi- 
cal views,  and  chosen  from  the  party  possessing  a  majority  in 
the  House  of  Commons  j  (c)  prosecuting  a  concerted  policy ;  (cT) 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  191 

under  a  common  responsibility  to  be  signified  by  collective  resig 
nation  in  the  event  of  parliamentary  censure;  and  (e)  acknow 
ledging  a  common  subordination  to  one  chief  minister,  —  took 
definitive  shape  in  our  modern  theory  of  the  Constitution,  and 
so  remains  to  the  present  day." ] 

Parliament  and  the  Ministers.  —  The  principles  concern- 
ing the  composition  of  the  modern  Cabinets  which  are  stated  in 
this  last  paragraph  of  Mr.  TrailPs  summary  may  be  said  to  have 
been  slowly  developed  out  of  the  once  changeful  relations  between 
Parliament  and  the  ministers  of  the  Crown.  As  I  have  said  (page 
188),  the  national  council  very  early  developed  a  profound  jeal- 
ousy of  the  power  and  influence  of  the  small  and  private  council 
of  state  and  court  officials  which  the  king  associated  with  himself 
in  the  exercise  of  his  great  prerogatives.  By  every  means  it 
sought  to  control  the  ministers.  Abandoning  very  soon,  as  revo- 
lutionary, all  efforts  to  hold  the  king  himself  personally  respon- 
sible for  executive  acts,  Parliament  early  accepted  the  theory  that 
the  king  could  do  no  wrong ;  that  breaches  of  law  and  of  right 
committed  by  the  government  were  committed  always,  —  so  the 
theory  ran,  —  by  the  vicious  advice  of  the  king's  personal  advisers; 
they  could  do  wrong  (here  the  theory  shaded  off  into  fact),  and 
they  should  be  held  responsible  for  all  the  wrong  done.  So  early 
as  the  close  of  the  twelfth  century  the  Great  Council  deposed  Wil- 
liam Longchamp,  Justiciar  and  Chancellor  of  Richard  I.,  for  abuse 
of  power.  During  the  fourteenth  century  Parliament  claimed  and 
once  or  twice  exercised  the  right  to  appoint  ministers  and  judges ; 
it  beheaded  Edward  II. 's  Treasurer  and  imprisoned  his  Chancel- 
lor for  their  part  in  Edward's  illegal  acts ;  and  at  the  close  of  the 
century  (1386)  it  impeached  Michael  de  la  Pole,  Richard  II.'s 
minister,  notwithstanding  the  fact  that  he  was  able  to  plead  the 
king's  direct  commands  in  justification  of  what  he  had  done.  In 
the  seventeenth  century  a  new  ground  of  impeachment  was  added. 
From  that  time  out,  ministers  were  held  responsible,  by  the  se- 
vere processes  of  trial  by  Parliament  for  high  crimes  and  mis- 
demeanors, not  only  for  illegal,  but  also  for  bad  advice  to  the 
Crown,  for  gross  mistakes  of  policy  as  well  as  for  overt  breaches 
of  law  and  of  constitutional  rights. 

»  H.  D.  Traill,  Central  Government  (English  Citizen  Series),  pp.  23-26. 


192  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

Disappearance  of  Impeachment.  —  The  Act  of  Settlement 
and  the  policy  of  William  and  Mary  inaugurated,  however,  the 
final  period  of  Parliament's  supremacy.  Parliament's  preferences 
began  to  be  regarded  habitually  in  the  choice  of  ministers,  and 
impeachment,  consequently,  began  gradually  to  fall  into  disuse. 
Its  place  was  taken  by  parliamentary  votes,  —  finally  by  votes  of 
the  House  of  Commons  alone.  Ministers  who  cannot  command  a 
majority  in  the  House  of  Commons  for  the  measures  which  they 
propose  resign,  and  Parliament  has  its  own  way  concerning  the 
conduct  of  the  government. 

The  Executive.  —  The  Executive,  under  the  English  sys- 
tem, so  far  as  it  may  be  described  at  once  briefly  and  correctly, 
may  be  said  to  consist,  therefore,  of  the  Sovereign  and  a  Cabinet 
of  ministers  appointed  with  the  Sovereign's  formal  consent.  All 
real  authority  is  with  the  Cabinet;  though  the  ministers  are,  in 
law,  only  the  Sovereign's  advisers,  and  the  government  is  con- 
ducted in  the  Sovereign's  name.  The  true  place  of  the  Sovereign 
in  the  system  is  that  of  an  honored  and  influential  hereditary 
councillor,  to  whose  advice  an  exalted  title  and  a  constant  famili- 
arity with  the  greater  affairs  of  state  lend  a  peculiar  weight. 
The  king l  is  in  fact,  though  of  course  not  in  legal  theory,  a 
permanent  minister,  differing  from  the  other  ministers  chiefly 
in  not  being  responsible  to  Parliament  for  his  acts,  and  on  that 
account  less  powerful  than  they. 

The  Sovereign  is  not  a  member  of  the  Cabinet  because  George  I. 
could  not  speak  English.  Until  the  accession  of  George  I.  the  king  always 
attended  Cabinet  councils;  George  did  not  do  so  because  he  could  not 
either  understand  or  be  understood  in  the  discussions  of  the  ministers. 
Since  his  time,  therefore,  the  Sovereign  has  not  sat  with  the  Cabinet.  A 
similar  example  of  the  interesting  ease  with  which  men  of  our  race  establish 
and  observe  precedents  is  to  be  found  in  the  practice  on  the  part  of  Presi- 
dents of  the  United  States  of  sending  written  messages  to  Congress. 
Washington  and  John  Adams  addressed  Congress  in  person  on  public 
affairs  ;  but  Jefferson,  the  third  President,  was  not  an  easy  speaker,  and 
preferred  to  send  a  written  message.  Subsequent  Presidents  followed  his 
example  as  of  course.  Hence  a  sacred  rule  of  constitutional  action! 1 

1  A  rule  which  President  Wilson,  himself,  was  the  first  President  to  violate. 
He  has  never  sent  a  written  message  to  the  Congress,  but  has  always  ad- 
dressed it  in  person. 


THE   GOVERNMENT   OF   GREAT  BRITAIN.  193 

Position  of  the  Cabinet.  —  The  Cabinet  consists  of  the 
principal  ministers  of  state  and  has  reached  its  present  position 
of  power  in  the  government  because  of  its  responsibility  to 
Parliament.  The  chief  interest  of  English  constitutional  his- 
tory centres  in  the  struggle  of  Parliament  to  establish  its 
supremacy  over  all  other  authorities  in  the  conduct  of  the  gov- 
ernment; that  struggle  issued  in  the  last  century  in  the  com- 
plete triumph  of  Parliament;  it  has  reached  its  farthest  logical 
consequence  in  1911  in  the  concentration  of  parliamentary 
authority  in  the  popular  house  of  Parliament,  the  House  of 
Commons.  Parliament  always  claimed  the  right  to  direct  in 
the  name  of  the  people,  of  the  nation ;  that  was  the  solid  basis 
of  all  its  pretensions ;  and  so  soon  as  reforms  in  the  composition 
of  the  House  of  Commons  had  made  it  truly  representative  of 
the  people,  the  House  of  Lords,  which  represents  the  hereditary, 
not  the  representative,  principle,  necessarily  lost  some  part  of  its 
political  authority.  It  is  constantly  recruited,  by  the  creation  of 
peerages,  from  all  classes  of  successful  men,  scientists,  manufac- 
turers, lawyers,  diplomatists,  journalists,  poets  ;  but  it  is  recruited 
by  appointment,  not  by  election ;  its  votes  are  not  controlled  by 
the  electorate ;  and  precedence  in  affairs  has  fallen  to  the  people's 
chamber. 

Appointment  of  the  Cabinet  Ministers The  responsi- 
bility of  the  ministers  to  Parliament  constitutes  their  strength 
because  it  makes  them,  the  agents  of  Parliament :  and  the  agents 
ot  a  sovereign  authority  virtually  share  its  sovereignty.  The 
king  appoints  only  such  ministers  as  have  the  confidence  of  the 
House  of  Commons;  and  he  does  it  in  this  way:  he  sends  for 
the  recognized  leader  of  the  political  party  which  has  the  major- 
ity in  the  House  of  Commons  and  asks  him  to  form  a  Cabinet. 
If  this  leader  thinks  that  his  party  will  approve  of  his  assuming 
such  a  responsibility,  he  accepts  the  commission,  and,  usually 
after  due  consultation  with  other  prominent  members  of  his 
party,  gives  to  the  Sovereign  a  list  of  the  men  whom  he  recom- 
mends for  appointment  to  the  chief  offices  'of  state.  These  the 
Sovereign  appoints  and  commissions  as  of  course.  They  are 
always  men  chosen  from  among  the  members  of  both  houses  of 
Parliament,  and  generally  because  they  have  proved  there  their 


194  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

ability  to  lead.  They  have,  so  to  say,  chosen  themselves  by  a 
career  of  steady  success  in  the  debates  of  the  Houses  :  they  have 
come  to  the  front  by  their  own  efforts,  by  force  of  their  own  abil- 
ity, and  usually  represent  tried  parliamentary  capacity.  Such 
capacity  is  necessary  for  their  success  as  ministers  ;  for,  after  they 
have  entered  "the  Cabinet,  they  constitute,  in  effect,  a  committee 
of  the  majority  of  the  House  of  Commons,  commissioned  to  lead 
Parliament  in  debate  and  legislation,  to  keep  it,  —  and,  through 
it,  the  country  at  large,  —  informed  concerning  all  important 
affairs  of  state  which  can  prudently  be  made  public,  and  to  carry 
out  in  the  conduct  of  the  government  the  policy  approved  of  by 
the  representatives  of  the  people. 

Composition  of  the  Cabinet.  —  The  Cabinet  does  not  con- 
sist invariably  of  the  same  number  of  ministers.  Until  1916 
eleven  officials  always  have  had  seats  in  it;  namely,  the  First 
Lord  of  the  Treasury,  the  Lord  Chancellor,  the  Lord  President  of 
the  Council,  the  Lord  Privy  Seal,  the  Chancellor  of  the  Exchequer, 
the  five  Secretaries  of  State  (for  Home  Affairs,  for  Foreign 
Affairs,  for  the  Colonies,  for  India,  and  for  War) ,  and  the  First 
Lord  of  the  Admiralty.  To  these  were  generally  added  from 
three  to  six  others,  according  to  circumstances  :  often,  for  in- 
stance, the  President  of  the  Board  of  Trade,  generally  of  late  the 
Chief  Secretary  for  Ireland,  frequently  the  President  of  the  Local 
Government  Board.  The  general  rule  which  governed  these 
additions  was,  that  every  interest  which  was  likely  to  be  promi- 
nent in  the  debates  and  proceedings  of  the  House  of  Commons 
ought  to  have  a  Cabinet  minister  to  speak  for  it  and  to  offer  to 
the  House  responsible  advice.  When  Mr.  Lloyd  George  became 
Prime  Minister  in  December,  1916,  he  formed  a  War  Cabinet  of 
five  members,  expanded  to  six  in  1917  with  an  occasional 
seventh,  but  did  not  include  any  of  the  principal  Secretaries 
of  State.  Three  members  of  the  War  Cabinet  are  ministers 
1  without  Portfolio.'  The  word  l  Ministry '  is  of  wider  meaning 
than  the  word  'Cabinet.'  The  *  Ministry7  consists  of  all  those 
executive  officers  who  have  seats  in  Parliament.  These  are  the 
1  political '  officers,  who  are  expected  to  resign  their  offices  when 
the  Cabinet  is  defeated  in  the  Commons.  But  not  all  of  them 
are  members  of  the  Cabinet.  The  Coalition  Cabinet  of  Mr. 


THE   GOVERNMENT    OF    GREAT    BRITAIN.  195 

Asquith  in  1916  consisted  of  twenty-three  persons ;  but  besides 
these  there  are  some  forty-five  non-Cabinet  ministers  in  Parlia- 
ment. (Compare  p.  202.) 

No  member  of  the  House  of  Commons  may  accept  office  with- 
out the  approval  of  his  constituents.  Upon  receiving  an  appoint- 
ment as  minister  he  must  resign  his  seat  in  the  House  and  seek 
reelection,  as  representative  plus  minister.1  The  whole  matter  is 
merely  formal,  however,  in  most  cases.  The  opposite  party  do 
not  usually,  under  such  circumstances,  contest  the  seat  a  second 
time,  and  the  minister  is  reflected  without  opposition. 

The  custom  of  the  Sovereign's  selecting  only  the  chief  minister 
and  intrusting  him  with  the  formation  of  a  ministry  also,  as  well 
as  the  Sovereign's  absence  from  Cabinet  meetings,  originated  with 
George  L,  who  did  not  know  enough  of  English  public  men  to 
choose  all  the  ministers,  and  so  left  the  choice  to  Walpole. 

This  method  of  forming  a  ministry  is  the  outcome  of  Par- 
liament's efforts  to  hold  the  king's  ministers  to  a  strict  responsi- 
bility to  itself.  None  but  members  of  their  own  party  would  suit 
the  majority  in  Parliament  as  ministers ;  and  since  the  ministers 
have  to  explain  and  excuse  their  policy  to  the  Houses  it  is  best 
that  they  should  be  members  of  the  Houses  with  the  full  privi- 
leges of  the  floor.  Only  by  such  an  arrangement  could  the  full 
harmony  desired  between  Parliament  and  the  ministers  be  main- 
tained :  by  face  to  face  intercourse. 

Ministerial  Responsibility.  —  If  the  ministers  are  defeated 
on  any  important  measure  in  the  House  of  Commons,  or  if  any 
vote  of  censure  is  passed  upon  them  in  that  House,  they  must 
resign,  —  such  is  the  command  of  precedent,  —  and  another  min- 
istry must  be  formed  which  is  in  accord  with  the  new  majority. 
The  ministers  must  resign  together  because  the  best  form  of 
responsibility  for  their  conduct  of  the  government  can  be  secured 
only  when  their  measures  are  taken  in  concert,  and  the  House  of 
Commons  would  be  cheated  of  all  real  control  of  them  if  they 
could,  upon  each  utterance  of  its  condemnation  of  an  executive 
act,  or  upon  each  rejection  by  it  of  a  measure  proposed  or  sup. 
ported  by  them,  '  throw  overboard '  only  those  of  their  number 
whose  departments  were  most  particularly  affected  by  the  vote, 

1  This  requirement  has  been  waived  by  acts  of  Parliament  during  the  war. 


196  THE    GOVERNMENT    OF   GREAT   BRITAIN. 

and  so  keep  substantially  the-  same  body  of  men  in  office.  If 
a  defeated  or  censured  ministry  think  that  the  House  of  Com. 
mons  in  its  adverse  vote  has  not  really  spoken  the  opinion  of 
the  constituencies,  they  can  advise  the  Sovereign  to  dissolve  the 
House  and  order  a  new  election ;  that  advice  must  be  taken  by 
the  Sovereign ;  and  the  ministers  stand  or  fall  according  to  the 
disposition  of  the  new  House  towards  them. 

It  should  be  added  that  exceptional  cases  do  sometimes  arise 
in  which  responsibility  for  an  objectionable  course  of  action  can 
be  so  plainly  and  directly  fixed  upon  a  particular  minister,  who 
has  acted,  it  may  be,  without  the  concurrence,  possibly  without 
the  knowledge,  of  his  colleagues,  that  his  separate  dismissal 
from  office  is  recognized  as  the  only  proper  remedy.  A  notable 
instance  of  this  sort  arose  in  England  in  1851,  when  Lord  Palm- 
erston,  then  foreign  secretary,  was  dismissed  from  office  for 
adding  to  various  other  acts  of  too  great  independence  an  un_ 
authorized  expression  of  approval  of  the  coup  d'6tat  of  Louis 
Napoleon  in  France. 

Legal  Status  of  the  Cabinet  —  The  peculiar  historical 
origin  of  the  Cabinet  appears  in  a  statement  of  its  position  before 
the  law.  As  we  have  seen  (page  189),  it  is  not  a  body  recognized 
by  law :  its  existence,  like  the  existence  of  not  a  few  other  politi- 
cal institutions  in  England,  is  only  customary.  The  particular 
ministers  who  form  the  Cabinet  have  the  legal  right  to  be  the 
exclusive  advisers  of  the  Crown,  —  that  is,  the  sole  executive 
power,  —  only  by  virtue  of  their  membership  of  the  Privy  Coun- 
cil. They  must  all  be  sworn  into  the  membership  of  that  body 
before  they  can  act  as  confidential  servants  of  the  Sovereign. 
The  Privy  Council  itself,  however  (as  a  whole,  that  is),  has  not 
been  asked  for  political  advice  for  two  centuries.  It  takes  no 
part  whatever  in  the  function  which  certain  ministers  exercise  by 
virtue  of  belonging  to  it ;  it  is  not  responsible  for  the  advice  they 
give  ;  and  it  cannot  in  any  way  control  that  advice.  Membership 
of  the  Privy  Council,  moreover,  is  for  life.  The  leaders  of  the 
minority  in  the  Commons,  having  themselves  once  been  minis- 
ters, are  still  members  of  the  Council  and  have  still  the  same 
legal  right  to  advise  the  Crown. 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  197 

Initiative  of  the  Cabinet  in  Legislation.  —  Having  inher- 
ited the  right  of  initiative  in  legislation  which  once  belonged  to 
the  Crown,  the  Cabinet  shape  and  direct  the  business  of  the 
Houses.  Most  of  the  time  of  Parliament  is  occupied  by  the  con- 
sideration of  measures  which  they  have  prepared  and  introduced  ; 
at  every  step  in  the  procedure  of  the  Houses  it  is  the  duty  of  the 
ministers  to  guide  and  facilitate  business. 

The  Prime  Minister.  — '  Consistency  in  policy  and  vigor  in 
administration'  on  the  part  of  the  Cabinet  are  obtained  by  its 
organization  under  the  authority  of  one  '  First '  Minister.  This 
Prime  Minister  generally  holds  the  office  of  First  Lord  of  the 
Treasury,  though  it  is  within  his  choice  to  hold  another,  if  he  will. 
It  is  not  the  office  which  gives  him  primacy  in  the  Cabinet,  but 
his  recognized  weight  as  leader  of  his  party.  The  leader  chosen 
by  the  Sovereign  to  form  the  ministry  stands  at  its  head  when 
formed.  He  usually  chooses  to  occupy  the  office  of  First  Lord  of 
the  Treasury  because  the  official  duties  of  that  place  are  nominal 
only  and  leave  him  free  to  exercise  his  important  functions  as 
leader  of  the  party  in  power.  The  Prime  Minister,  though 
'  unknown  to  the  constitution,'  has  been  given  indirect  recogni- 
tion by  a  Royal  Proclamation  of  December  2,  1905,  giving  him 
1  place  and  precedence '  above  all  his  colleagues  except  the  Lord 
Chancellor  and  next  after  the  Archbishop  of  York.  Recognition 
by  statute  fixing  the  order  of  precedence  of  public  dignitaries 
followed  in  1906. 

The  Departments  of  Administration.  —  So  much  for  the  re- 
lations of  the  Cabinet  to  the  Sovereign  and  to  Parliament.  When 
we  turn  to  view  it  in  its  administrative  and  governing  capacity  as 
the  English  Executive,  we  see  the  ministers  as  heads  of  depart- 
ments, as  in  other  governments.  But  the  departments  of  the 
central  government  in  England  are  by  no  means  susceptible  of 
brief  and  simple  description  as  are  those  of  other  countries,  which 
have  been  given  their  present  forms  by  logical  and  self-consistent 
written  constitutions,  or  by  the  systematizing  initiative  of  absolute 
monarchs.  They  hide  a  thousand  intricacies  born  of  that  com- 
posite development  so  characteristic  of  English  institutions. 

The  Five  Great '  Offices ;  of  State.  —  Not  attempting  detail, 
however,  it  is  possible  to  give  a  tolerably  clear  outline  of  the  cen- 


198  THE   GOVERNMENT   OF    GREAT   BRITAIN. 

tral  administration  of  the  kingdom  in  comparatively  few  words. 
The  Treasury  I  shall  describe  in  a  separate  paragraph.  The 
Home  Office  has  a  great  variety  of  duties :  it  superintends  the 
constabulary ;  oversees,  to  a  limited  extent,  the  local  magistracy 
and  the  administration  of  prisons ;  advises  the  Sovereign  with 
reference  to  the  granting  of  pardons ;  and  is  the  instrument  of 
Parliament  in  carrying  out  numerous  statutes  regulating  the  hours 
and  conditions  of  labor  in  mines  and  factories.  The  Foreign 
Office  describes  itself.  So  do  also,  sufficiently,  the  Colonial  Office, 
the  War  Office,  and  the  India  Office. 

These  five  great  '  Offices '  are  all,  historically  considered,  in  a 
certain  sense  offshoots  from  a  single  office,  that  of  the  king's 
Principal  Secretary  of  State.  By  one  of  the  usual  processes  of 
English  constitutional  development,  an  officer  bearing  this  title 
very  early  came  into  existence  as  one  of  the  most  trusted  min- 
isters of  the  Crown.  At  first  only  a  specially  confided-in  servant 
of  the  Sovereign,  employed  in  all  sorts  of  confidential  missions, 
he  gradually  assumed  a  more  regular  official  place  and  began  to 
absorb  various  important  functions.  At  length  it  became  neces- 
sary to  double  him  and  to  have  two  Principal  Secretaries  of  State, 
two  men  theoretically  sharing  one  and  the  same  office,  and  alter- 
nates of  each  other.  At  last  he  has,  for  the  sake  of  convenience, 
been  quintupled. 

There  are  five  Principal  Secretaries  of  State,  all,  in  theory, 
holding  the  same  office,  and  each,  in  theory,  legally  authorized 
to  perform  the  functions  of  any  or  all  of  the  others ;  but  in 
fact,  of  course,  keeping  each  to  a  distinct  department.  There 
is  a  Principal  Secretary  of  State  for  the  Home  Department, 
a  Principal  Secretary  of  State  for  Foreign  Affairs,  a  Principal 
Secretary  of  State  for  the  Colonies,  a  Principal  Secretary  of  State 
for  War,  and  a  Principal  Secretary  of  State  for  India.  It  is  an 
interesting  and  characteristic  case  of  evolution. 

The  Admiralty,  the  Board  of  Trade,  and  the  Local  Govern- 
ment Board,  —  The  Admiralty  is  the  naval  office.  It  is  presided 
over  by  a  Commission  of  six,  consisting  of  a  chairman,  entitled 
First  Lord  of  the  Admiralty,  and  five  Junior  Lords.  The  Board 


THE  GOVI:KNMI:NT  OF  GREAT  BRITAIN.  199 

of  Trade  is,  in  form,  a  committee  of  the  Privy  Council.  It  is 
reconstituted  at  the  opening  of  each  reign  by  an  order  in  Coun- 
cil. It  consists,  nominally,  of  "  a  President  and  certain  ex  ojficio 
members,  including  the  First  Lord  of  the  Treasury,  the  Chan- 
cellor of  the  Exchequer,  the  Principal  Secretaries  of  State,  the 
Speaker  of  the  House  of  Commons,  and  the  Archbishop  of  Can- 
terbury." l  But  it  has  long  since  lost  all  vital  connection  with 
the  Privy  Council  and  all  the  forms  even  of  board  action.  Its 
President  is  now  practically  itself.  Its  duties  and  privileges  are 
both  extensive  and  important.  It  advises  the  other  departments 
concerning  all  commercial  matters,  and  is  the  statistical  bureau  of 
the  kingdom ;  it  exercises  the  state  oversight  of  railways,  inspects 
passenger  steamers  and  merchant  vessels,  examines  and  commis- 
sions masters  and  mates  for  the  merchant  marine,  administers  the 
statutes  concerning  harbors,  lighthouses,  and  pilotage,  provides 
standard  weights  and  measures,  superintends  the  coinage,  and 
supervises  the  Post  Office.  The  Local  Government  Board,  which 
is  also  in  form  a  committee  of  the  Privy  Council,  has  also  in 
reality  none  of  the  characteristics  either  of  a  committee  or  of  a 
board.  It  is  a  separate  and  quite  independent  department,  under 
the  control  of  a  President.  Its  other,  nominal,  members,  the 
Lord  President  of  the  Council,  the  five  Principal  Secretaries  of 
State,  the  Lord  Privy  Seal,  and  the  Chancellor  of  the  Exchequer, 
in  reality  take  no  part  in  its  management.  It  is,  in  effect,  the 
English  department  of  the  Interior.  It  is  charged  with  super- 
vising the  administration,  by  the  local  authorities  of  the  kingdom, 
"  of  the  laws  relating  to  the  public  health,  the  relief  of  the  poor, 
and  local  government " ;  old  age  pensions  ;  roads  ;  —  duties  more 
important  to  the  daily  good  government  of  the  country  than  those 
of  any  other  department.  It  also  specially  examines  and  reports 
upon  e^ery  private  bill  affecting  private  interests. 

The  Board  of  Agriculture.  —  In  1889  still  another  depart- 
ment was  set  up  which  was  to  be  in  form  a  Board  but  in  fact  in 
charge  of  a  single  minister,  its  President.  Since  1883  there  had 
been  a  Committee  of  the  Privy  Council  charged  with  the  special 

i  Traill,  pp.  126,  127. 


200  THE   GOVERNMENT    OF   GREAT   BRITAIN. 

superintendence  of  the  agricultural  interests  of  the  kingdom ;  in 
1889  it  was  given  a  more  definite  organization  and  larger  powers, 
under  the  name  of  The  Board  of  Agriculture,  —  a  Board  to  consist 
nominally  of  the  Lord  President  of  the  Council,  the  five  Principal 
Secretaries  of  State,  the  First  Commissioner  of  the  Treasury,  the 
Chancellor  of  the  Exchequer,  the  Chancellor  of  the  Duchy  of  Lan- 
caster, and  the  Secretary  for  Scotland ;  but  really  to  be  under  the 
direction  of  none  of  these  gentlemen,  but  of  its  own  independent 
President. 

The  duties  of  the  Board  embrace,  besides  the  collection  and 
publication  of  all  information  likely  to  be  serviceable  to  the 
agricultural  interest  and  the  conduct  and  encouragement  of  in- 
quiries and  investigations  touching  agricultural  processes  and  con- 
ditions and  concerning  the  culture  of  forests,  the  inspection  and 
subvention  of  schools  in  which  instruction  is  given  in  such  sub- 
jects, the  duties  hitherto  attaching  to  the  offices  of  the  Land 
Commissioners  and  of  the  Commissioners  of  Works  and  Public 
Buildings,  the  enforcement  of  the  acts  concerning  contagious 
diseases  among  animals,  and  a  miscellany  of  duties  of  like 
kinds. 

The  Post  Office  is  in  England  a  subdivision  of  the  Board  of 
Trade.  At  its  head  is  a  Postmaster  General.  It  controls,  besides 
the  usual  business  of  a  post-office  department,  the  telegraph  and 
telephone  system  of  the  country,  which  is  owned  by  the  govern- 
ment ;  and  it  has  also  under  its  direction  a  useful  postal  savings- 
bank  system. 

The  war  has  made  necessary  the  creation  of  a  number  of  new 
ministerial  posts,  the  most  important  of  which  are  the  Minister 
of  Munitions  of  War,  with  Mr.  Lloyd  George  as  the  first  to  hold 
the  position,  for  the  control  and  production  of  arms  and  ammuni- 
tion of  every  sort ;  the  Minister  of  Blockade  ;  the  Shipping  Con- 
troller ;  the  Food  Controller ;  the  President  of  the  Air  Board,  and 
the  Minister  of  Reconstruction. 

The  Treasury.  —  The  history  of  this  department,  which 
may  be  reckoned  the  most  important,  may  serve  as  another  typi- 
cal example  of  English  departmental  evolution.  Originally  the 
chief  financial  minister  of  the  Crown  was  the  Lord  High  Treas- 
urer, with  whom  was  associated  at  an  early  date  a  Chancellor  of 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  201 

the  Exchequer.  But  in  the  reign  of  George  I.  the  great  office  of 
Lord  High  Treasurer  was,  in  English  phrase,  put  permanently 
{ into  commission ' :  its  duties,  that  is,  were  intrusted  to  a  board 
instead  of  to  a  single  individual.  This  board  was  known  as  the 
"Lords  Commissioners  for  executing  the  office  of  Lord  High 
Treasurer,"  and  consisted  of  a  First  Lord  of  the  Treasury,  the 
Chancellor  of  the  Exchequer,  and  three  others  known  as  Junior 
Lords. 

Evolution  speedily  set  in,  as  in  other  similar  English  boards. 
That  is,  the  board  ceased  to  act  as  a  board.  Its  functions  be- 
came concentrated  in  the  hands  of  the  Chancellor  of  the  Ex- 
chequer; the  First  Lordship,  occupied  almost  invariably  since 
1762  by  the  Prime  Minister,  gradually  lost  all  connection,  except 
that  of  honorary  chairmanship,  with  the  Treasury  Commission, 
its  occupant  giving  all  his  energies  to  his  political  functions 
(page  197)  ;  and  the  Junior  Lords  were  left  none  but  parliamen- 
tary duties. 

The  Chancellor  of  the  Exchequer,  therefore,  is  the  working 
head  of  the  Treasury  Department,  and  as  such  plays  one  of  the 
most  conspicuous  and  important  roles  in  the  government  of  the 
country.  He  controls  the  revenue  and  expenditure  of  the  state, 
submitting  to  Parliament,  in  the  form  of  an  annual  'budget/ 
careful  comparisons  of  the  sums  needed  for  the  public  service  and 
of  the  sums  that  may  be  expected  to  accrue  from  existing  or  pos- 
sible sources  of  revenue,  together  with  proposals  to  extend  or 
curtail  taxation,  according  as  there  is  prospect  of  a  deficit  or  of  a 
surplus  under  existing  arrangements. 

The  Estimates.  —  The  various  departments  make  up  their 
own  estimates ;  but  those  are  subjected  to  a  careful  examination 
by  the  Chancellor  of  the  Exchequer,  and  with  him  rests  the  pre- 
rogative of  revising  them  where  they  may  seem  to  admit  of  or  to 
require  revision.  Thus  changes  in  the  clerical  forces  of  the  de- 
partments or  redistributions  of  their  work  among  sub-departments, 
etc.,  cannot,  if  they  involve  additional  expense,  be  made  without 
express  approval  by  the  Treasury. 

Mr.  Gladstone  twice,  with  characteristic  energy,  held,  when 
Prime  Minister,  both  the  office  of  the  First  Lord  of  the  Treasury 
and  the  office  of  Chancellor  of  the  Exchequer,  thus  in  effect  once 


202  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

more  bringing   the  First   Lord   iuto   vital  connection   with  his 
nominal  department. 

Administrative  Departments  of  the  Privy  Council.  — 
Though  superseded  as  advisory  council  to  the  Crown  by  the  Cabi- 
net and  deprived  of  all  actual  executive  control  by  the  virtual 
erection  of  its  several  boards  into  independent  departments,  the 
Privy  Council  still  has  one  or  two  vital  parts.  Chief  among 
these  is  The  Education  Department,  which  consists  of  the  Lord 
President  of  the  Council,  as  nominal  chief,  a  Vice-President  as 
working  chief,  and  certain  ex  officio  members,  among  them  the 
Chancellor  of  the  Exchequer  and  the  Secretary  of  State  for  Home 
Affairs,  and  which  is  charged  with  the  administration  of  the  pub- 
lic educational  system  of  the  country.  This  committee  preserves 
in  a  rather  more  than  formal  way  its  collegiate  character.  The 
important  judicial  duties  of  the  Privy  Council  I  shall  speak  of 
in  another  connection  (page  219). 

The  Lord  Privy  Seal  exercises  no  important  functions  ex- 
cept those  of  keeping  the  great  Seal  of  State  and  affixing  it  to 
such  public  documents  as  need  its  formal  attestation ;  but  the 
office  is  a  '  Cabinet  office.7  The  lightness  of  its  duties  leaves  its 
incumbent  the  freer  for  his  Cabinet  functions  of  counsel.  It  is  a 
berth  for  elderly  men  of  intellectual  and  political  weight  who 
cannot  or  will  not  undertake  onerous  official  duties. 

The  Chancellor  of  the  Duchy  of  Lancaster  holds  an  office 
whose  duties  (entirely  legal  and  local)  have  all  been  delegated  by 
longstanding  custom  to  a  Vice-Chancellor ;  but  eminent  politicians 
are  brought  into  the  Cabinet  through  this  sinecure  Chancellor- 
ship in  order  that  they  may  give  the  ministry  the  benefit  of  their 
advice  and  countenance. 

Political  Under  Secretaries.  —  There  are  often  associated 
with  the  principal  ministers  of  state  certain  'political'  Under 
Secretaries,  whose  function  is  one  of  very  considerable  impor- 
tance. A  political  Under  Secretary  is  one  who  goes  in  or  out  of 
office  with  his  party,  not  having  a  place  in  the  Cabinet  but  shar- 
ing its  fortunes  in  the  Commons.  He  is  parliamentary  spokes- 
man for  his  chief.  If  the  foreign  minister,  for  instance,  or  any 
other  member  of  the  Cabinet,  the  affairs  of  whose  department 
may  be  expected  to  call  forth  frequent  comment  or  question  in 


THE   GOVERNMENT    OF   GREAT   BRITAIN.  203 

the  lower  House,  be  a  member  of  the  House  of  Lords,  he  is  repre- 
sented in  the  Commons  by  an  Under  Secretary,  who  there  speaks 
as  the  minister's  proxy.  The  representation  of  the  ministers  in 
both  Houses  is  thus  secured.  (Compare  page  194.) 

Administration  of  Scotland  and  Ireland.  —  The  affairs  of 
Scotland  are  cared  for  through  the  agency  of  a  Lord  Advocate 
for  Scotland,  who  is  the  legal  adviser  of  the  government  concern- 
ing Scotch  interests,  and  a  Secretary  for  Scotland  who  is  the  in- 
termediary between  the  Scotch  members  of  Parliament  and  the 
ministry,  and  the  official  spokesman  of  the  ministers  regarding 
Scotch  business  in  the  House  of  Commons.  Officially  the  Lord 
Advocate  ranks  as  a  subordinate  of  the  Secretary  of  State  for 
Home  Affairs. 

The  Irish  executive  is,  formally  at  least,  separate  from  the 
English,  being  vested  in  a  Lord  Lieutenant  and  a  Privy  Council ; 
but  in  fact  it  is  completely  controlled  by  the  English  Cabinet 
though  the  Chief  Secretary  to  the  Lord  Lieutenant,  who  is  always 
a  member  of  the  House  of  Commons  and,  when  Irish  affairs  are 
specially  prominent,  a  member  of  the  Cabinet  also;  and  who, 
though  in  titular  rank  a  subordinate  of  the  Lord  Lieutenant,  is, 
by  virtue  of  his  relations  to  the  Cabinet  and  to  Parliament,  in 
effect  his  master. 

For  many  years  the  agitation  for  Home  Rule  had  been  carried 
on  but  without  success  till  the  accession  to  power  of  the  Liberals 
in  1906  and  again  in  1910. 

A  Home  Rule  Act  for  Ireland  was  passed  by  the  House  of 
Commons  in  the  three  consecutive  sessions  of  1912-13,  1913,  and 
1914,  but  was  rejected  by  the  House  of  Lords.  Under  the  pro- 
visions of  the  Parliament  Act  it  accordingly  became  a  statute,  but 
before  it  could  be  put  into  operation  the  war  began  and  a  Sus- 
pensory Act  was  passed  postponing  the  time  for  putting  it  into 
operation  for  twelve  months,  or,  if  the  war  were  not  then 
ended,  to  such  further  time  as  should  be  fixed  by  the  King  in 
Council. 

The  Home  Rule  Act  provided  that  the  executive  power,  vested 
in  the  King,  should  be  exercised  by  a  Lord  Lieutenant,  acting  for 
the  King,  through  the  Irish  Ministers,  heads  of  the  Irish  De- 
partments. 


204  THE    GOVERNMENT    OF    GREAT   BRITAIN. 

The  legislative  authority  is  in  an  Irish  Parliament,  consisting 
of  the  King  and  two  Houses  —  a  Senate  and  a  House  of  Commons. 
This  Parliament  has  authority  to  "  make  laws  for  the  peace,  order, 
and  good  government  of  Ireland  "  subject  to  the  plenary  authority 
of  the  Parliament  of  the  United  Kingdom  and  to  certain  special 
limitations. 

All  money  bills  shall  originate  in  the  Commons  and  may  not 
be  rejected  or  amended  by  the  Senate.  The  Senate  is  to  be 
composed  of  forty  members,  —  those  of  the  first  Parliament  to 
be  nominated  by  the  Imperial  Cabinet  and  thereafter  to  be  elected 
by  the  four  Irish  provinces,  by  proportional  representation  for  a 
period  of  five  years  and  not  to  be  affected  by  dissolution.  The 
House  of  Commons  will  consist  of  164  members,  elected  by  the 
present  Parliamentary  electors.  In  constituencies  returning 
three  or  more  members  the  principle  of  proportional  representa- 
tion will  be  applied.  The  duration  of  a  House  of  Commons  is 
five  years,  but  it  may  be  sooner  dissolved  by  the  Lord  Lieutenant 
under  circumstances  similar  to  those  that  would  lead  to  a  disso- 
lution of  the  House  of  Commons  at  Westminster. 

In  case  of  conflict  between  the  Senate  and  the  Commons,  a  bill 
sent  up  to  the  Senate  for  a  second  time  in  the  following  session 
and  again  rejected,  is  to  be  submitted  to  a  joint  session  of  the 
two  Houses  and  if  adopted  by  a  majority  of  those  present  and 
voting,  it  shall  become  a  law. 

Irish  representation  in  the  House  of  Commons  at  Westminster 
is  fixed  at  42.  When  the  financial  arrangements  between  Ireland 
and  the  United  Kingdom  has  been  reached,  additional  members 
may  be  summoned  from  the  Irish  House  of  Commons  in  such 
numbers  as  will  make  the  representation  of  Ireland  equivalent  to 
that  of  Great  Britain  on  the  basis  of  population.  These  members 
so  summoned  shall  be  deemed  members  of  the  House  of  Com- 
mons at  Westminster  for  the  purposes  of  revision  of  the  financial 
arrangements. 

The  Lord  Chancellor,  the  only  regular  member  of  the 
Cabinet  whose  duties  I  have  not  yet  indicated,  is  a  judicial  and 
legislative  officer.  His  functions  will  be  mentioned  in  another 
connection  (page  219). 


THE   GOVERNMENT   OF   GREAT    BRITAIN.  205 

The  Cabinet  as  Executive.  —  It  would  be  a  great  mistake 
to  suppose  that,  because  the  Cabinet  is  in  reality  a  committee  of 
the  House  of  Commons,  drawing  all  its  authority  from  the  confi- 
dence reposed  in  it  by  that  chamber,  it  is  a  mere  committee,  pos- 
sessing no  separate  importance  as  the  executive  body  of  the 
kingdom.  In  a  sense  the  ministers  have  inherited  the  ancient 
prerogatives  of  the  Crown;  and  Parliament  is,  in  a  very  sensible 
degree,  dependent  upon  them  for  the  efficacy  of  the  part  it  is  to 
play  in  governing.  Almost  all  important  legislation  waits  for 
their  initiative,  and  the  whole  business  of  the  Houses  to  a  great 
extent  depends  upon  them  for  its  progress.  They  can  make 
treaties,  of  whatever  importance,  with  foreign  countries;  they 
can  shape  the  policy  of  the  mother  country  towards  her  colonies; 
they  can  take  what  serious  steps  they  please  with  reference  to 
the  government  of  India,  can  place  troops  and  naval  forces  at 
pleasure,  can  make  a  score  of  momentous  moves  of  policy  towards 
the  English  dependencies  and  towards  foreign  countries,  —  in  the 
field,  that  is,  of  many  of  the  largest  interests  of  the  Empire,  — 
which  may  commit  the  country  to  the  gravest  courses  of  action; 
—  and  all  without  any  previous  consultation  with  Parliament, 
whom  they  serve.  The  House  of  Commons,  in  brief,  can  punish 
but  cannot  prevent  them. 

Parliament:  I.  the  House  of  Commons;  its  Original  Char- 
acter. —  "  The  Parliament  of  the  nineteenth  century  is,  in  ordi- 
nary speech,  the  House  of  Commons.  When  a  minister  consults 
Parliament  he  consults  the  House  of  Commons ;  when  the  Queen 
dissolves  Parliament  she  dissolves  the  House  of  Commons.  A 
new  Parliament  is  merely  a  new  House  of  Commons."1  Such 
has  been  the  evolution  of  English  politics.  But  the  processes 
which  worked  out  this  result  were  almost  five  centuries  long. 
During  a  very  long  period,  Parliament's  first  and  formative 
period,  the  Commons  held  a  position  of  distinct  and  natural 
subordination  to  the  Lords,  lay  and  spiritual;  the  great  constitu- 
tional roles  were  played  by  the  king  and  baronage.  The  com- 
moners in  Parliament  represented  the  towns,  and  spoke,  for  the 
most  part,  at  first,  only  concerning  the  taxes  they  would  give. 

1  Spencer  Walpole,  The  Electorate  and  the  Legislature  (English  Citizen 
Series),  p.  48. 


206  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

When  the  house  of  Parliament  called  the  House  of  Commons 
first  assumed  a  distinct  separate  existence,  about  the  middle  of 
the  fourteenth  century  (page  187),  it  was  by  no  means  a  homo- 
geneous body.  It  held  both  the  knights  of  the  shires  and  the 
burgesses  of  the  towns ;  and  it  was  a  very  long  time  before  the 
knights  forgot  the  doubt  which  had  at  first  been  felt  as  to  which 
house  they  should  sit  with,  Lords  or  Commons.  They  were  men 
of  consideration  in  their  counties;  the  only  thing  in  common 
between  them  and  the  men  from  the  towns  was  that  election,  and 
not  hereditary  possessions  or  rank,  was  the  ground  of  their  pres- 
ence in  Parliament.  Long  use,  however,  finally  obscured  such 
differences  between  the  two  groups  of  members  in  the  lower 
House;  their  interests  were  soon  felt  to  be  common  interests, 
because  the  chief  questions  they  had  a  real  voice  in  deciding  were 
questions  of  taxation,  which  touched  all  alike. 

Historical  Contrasts  between  County  and  Borough  Repre- 
sentatives. —  The  main  object  of  the  Crown  in  making  the  Com- 
mons as  representative  as  possible  would  seem  to  have  been  to 
bring  the  whole  nation,  as  nearly  as  might  be,  into  cooperation 
in  support  of  tbe  king's  government :  and  at  first  the  lower  House 
was  a  truly  representative  body.  The  knights  of  the  shires  were 
elected  "  in  the  county  court,  by  the  common  assent  of  the  whole 
country  " ;  the  burgesses  of  the  towns  were  chosen  by  the  borough 
freemen,  a  body  numerous  or  limited  according  to  the  charter  of 
each  individual  town,  but  generally  sufficiently  broad  to  include 
the  better  class  of  citizens.  It  was  the  decay  of  the  towns  and 
the  narrowing  of  their  franchises  which  made  the  Commons 
of  the  closing  decades  of  the  last  century  and  the  first  decades  of 
our  own  the  scandalously  subservient,  unrepresentative  Commons 
which  drove  the  American  colonies  into  revolt.  So  early  as  the 
reign  of  Henry  VI.,  in  the  first  half,  that  is,  of  the  fifteenth  cen- 
tury, the  franchise  was  limited  in  the  counties  to  freeholders 
whose  landed  property  was  of  an  annual  value  of  forty  shillings, 
and  forty  shilling  freeholders  were  then  men  4>f  means ; 1  but  this 
franchise  remained  unchanged  until  the  parliamentary  reforms  of 

1  Forty  shillings,  it  is  estimated,  were  equivalent  at  that  time  in  pur- 
chasing value  to  eighty  pounds  at  present  ($400).  See  f  E.  T.  Rogers, 
Economic  Interpretation  of  History,  p.  32. 


THE  GOVKKNMKXT  OF  GREAT  BRITAIN.  207 

the  present  century,  and  tended  steadily,  with  the  advancing 
wealth  of  the  country  and  the  relative  decrease  in  the  value  of 
the  shilling,  to  become  more  inclusive  and  more  liberal.  The 
borough  franchise,  on  the  contrary,  went  all  the  time  steadily 
from  bad  to  worse.  It  became  more  and  more  restricted,  and  the 
towns  which  sent  representatives  to  Parliament  became,  partly 
by  reason  of  their  own  decay,  partly  by  reason  of  the  growth  and 
new  distribution  of  population  in  the  kingdom,  less  and  less  fitted 
or  entitled  to  represent  urban  England.  New  boroughs  had  been 
given  representatives  from  time  to  time;  but  all  efforts  to  redis- 
tribute representation  had  virtually  ceased  before  the  dawn  of 
the  period  of  that  great  increase  of  population  and  that  immense 
development  of  wealth  and  industry  which  has  made  modern 
England  what  it  is.  The  towns  which  returned  members  to  the 
House  of  Commons  were  mostly  in  the  southern  counties  where 
the  old  centres  of  population  had  been.  Gradually  they  had  lost 
importance  as  the  weight  of  the  nation  shifted  to  the  central  and 
western  counties  and  Liverpool,  Manchester,  and  Birmingham 
grew  up,  — and  not  their  importance  only,  but  their  inhabitants 
as  well.  Some  fell  into  ruins  and  merged  in  neighboring  proper- 
ties, whose  owners  pocketed  both  them  and  their  parliamentary 
franchise;  others,  which  did  not  so  literally  decay,  became 
equally  subject  to  the  influence  of  neighbor  magnates  upon  whom 
the  voters  felt  more  or  less  dependent;  and  at  last  the  majority 
of  seats  in  the  Commons  were  virtually  owned  by  the  landed 
classes  represented  in  the  House  of  Lords. 

The  House  of  Commons  consisted  in  1801  of  658  members,  and 
of  these  425  are  said  to  have  been  returned  u  on  the  nomination  or  on 
the  recommendation  of  252  patrons."  It  is  said,  also,  that  "309  out 
of  the  513  members  belonging  to  England  and  Wales  owed  their  elec- 
tion to  the  nomination  either  of  the  Treasury  or  of  162  powerful  indi- 
viduals." i 

Geographical  Relations  of  Boroughs  and  Counties.  —  Borough 
populations  had  no  part  in  the  election  of  county  members.  The  counties 
represented  in  Parliament  were  rural  areas,  exclusive  of  the  towns.  Thus 
the  county  of  Derby  was,  for  the  purposes  of  parliamentary  representation, 
the  county  of  Derby  minus  its  boroughs. 

1  Walpoie,  p.  55. 


208  THE    GOVERNMENT    OF   GREAT   BRITAIN. 

Parliamentary  Eef  orm.  —  It  was  to  remedy  this  condition 
that  the  reforms  since  the  beginning  of  the  nineteenth  century 
were  undertaken.  Those  reforms  have  made  the  House  of  Com- 
mons truly  representative  and  national :  and  in  making  it  national 
have  made  it  dominant.  In  1832  a  wholesale  redistribution  of 
seats  was  accomplished,  and  a  complete  reformation  of  the  fran- 
chise. The  decayed  towns  were  deprived  of  their  members,  and 
the  new  centres  of  population  were  accorded  adequate  repre- 
sentation. The  right  to  vote  in  the  countries  was  extended  from 
those  who  owned  freeholds  to  those  who  held  property  on  lease 
and  bhose  who  held  copyhold  estates,1  and  to  tenants  whose  hold- 
ings were  of  the  clear  annual  value  of  fifty  pounds.  The  borough 
franchise  was  put  upon  the  uniform  basis  of  householders  whose 
houses  were  worth  not  less  than  ten  pounds  a  year.  This  was 
putting  representation  into  the  hands  of  the  middle,  well-to-do 
classes  ;  and  with  them  it  remained  until  1867.  In  1867  another 
redistribution  of  seats  was  effected,  which  increased  the  number 
of  Scotch  members  from  fifty-four  to  sixty  and  made  other  impor- 
tant readjustments  of  representation.  The  franchise  was  at  the 
same  time  very  greatly  widened.  In  the  boroughs  all  house- 
holders and  every  lodger  whose  lodgings  cost  him  ten  pounds 
annually  were  given  the  right  to  vote  ;  and  in  the  counties,  be- 
sides every  forty  shilling  freeholder,  every  copyholder  and  lease- 
holder whose  holding  was  of  the  annual  value  of  five  pounds,  and 
every  householder  whose  rent  was  not  less  than  twelve  pounds 
a  year.  Thus  representation  stood  for  almost  twenty  years. 
Finally,  in  1884,  the  qualifications  for  voters  in  the  counties  were 
made  the  same  as  the  qualifications  fixed  for  borough  electors  by 
the  law  of  1867,  and  over  two  millions  and  a  half  of  voters  were 
thus  added  to  the  active  citizenship  of  the  country. 

In  1885  another  great  Redistribution  Act  was  passed,  which 
merged  eighty-one  English,  two  Scotch,  and  twenty-two  Irish 
boroughs  in  the  counties  in  which  they  lie,  for  purposes  of  repre- 
sentation ;  gave  additional  members  to  fourteen  English,  three 

1  Copyhold  estates  are  estates  held  by  the  custom  of  the  manor  in  which 
they  lie,  a  custom  once  evidenced  by  a  *  copy '  of  the  rolls  of  the  Manor 
Court. 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  209 

Scotch,  and  two  Irish  boroughs  ;  and  created  thirty-three  new 
urban  constituencies.  The  greater  towns  which  returned  several 
members  were  cut  up  into  single-member  districts,  and  a  like  ar- 
rangement was  effected  in  the  counties,  which  were  divided  into 
electoral  districts  to  each  of  which  a  single  representative  was 
assigned.1  These  changes  were  accompanied  by  an  increase  of 
twelve  in  the  total  number  of  members.  Through  the  redistribu- 
tion of  seats  in  1832  and  1867  the  number  had  remained  658 ;  in 
1885  it  was  raised  to  670. 

Parliamentary  Franchise.  —  The  last  and  most  far-reach- 
ing extension  of  the  suffrage,  through  the  Representation  of  the 
People  Act  of  1918,  swept  away  all  special  qualifications  existing 
at  the  time  of  its  passage.  Neither  owners,  lodgers,  nor  freemen 
are  to  be  registered  as  such  and  the  principle  of  woman  suffrage 
has  received  wide  recognition.  Universal  suffrage  for  men  and 
women  has  been  largely  achieved. 

By  this  Act  the  franchise  was  extended  to  all  male  subjects 
of  full  age,  not  subject  to  any  legal  incapacity,  who  have  resided 
in  a  constituency  for  a  period  of  six  months  terminable  either  on 
July  15th  or  January  15th  in  any  year.  This  period  is  reduced 
to  one  month  for  discharged  soldiers.  Men  who  have  the  resi- 
dential qualification  and  are  also  occupiers  as  owners  or  tenants 
of  land  on  premises  of  the  yearly  value  of  not  less  than  £10, 
are  entitled  to  a  second  vote,  provided  the  land  or  premises  be 
used  for  the  purposes  of  a  business,  trade,  or  profession  and  that 
the  qualification  is  not  in  the  same  constituency  as  that  in  which 
they  have  their  residence. 

All  men  of  full  age  and  not  under  any  legal  incapacity  who 
have  received  a  degree  (other  than  an  honorary  degree)  from  a 
University  and  all  women  thirty  years  of  age  who  would  be 
entitled  to  vote  for  a  University  if  she  were  a  man  are  entitled  to 
vote  for  the  University  or  group  of  Universities  formed  under 
the  Act.  This  vote  may  be  in  addition  to  the  residential  vote, 
but  no  person  may  have  more  than  two  votes.  Women  of  thirty 
years  of  age  and  not  subject  to  any  legal  incapacity,  who  are 

1  This  was  establishing  what  the  French,  as  we  have  seen  (page  222), 
would  call  scrutin  d"1  arrondissement. 


210  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

entitled  to  be  local  government  electors,  in  respect  of  the  occupa- 
tion, as  owners  or  tenants,  of  land  or  premises  of  the  value  of 
£5  per  annum  or  of  a  dwelling  house,  and  women  whose  husbands 
are  electors  in  a  local  government  area  for  lands  or  premises  of 
the  value  of  £5  per  annum  or  of  a  dwelling  house,  have  received 
the  franchise.  It  is  estimated  that  the  vote  has  thereby  been 
extended  to  six  million  women  and  that  the  total  number  of 
electors  under  the  new  Act  will  be  doubled. 

A  new  redistribution  of  seats,  based  on  one  member  for  every 
70,000  people,  was  also  included,  with  a  special  act  for  Ireland, 
so  that  the  new  House  of  Commons  will  be  composed,  of  707 
members.  In  the  new  House  of  Commons  England  will  have 
492  members,  Wales  36,  Scotland  74,  and  Ireland  105,  372  sitting 
for  counties,  320  for  boroughs,  and  15  for  universities.  All  elec- 
tions will  be  held  on  the  same  day;  the  cost  of  elections  is 
cheapened  and  registration  is  simplified  and  put  in  charge  of  a 
responsible  public  official  in  every  constituency. 

Election  and  Term  of  the  Commons.  —  Members  of  the 
House  of  Commons  are  elected,  by  secret  ballot,  for  a  term  of 
five  years.1  Any  male  citizen  is  eligible  for  election  except 
priests  and  deacons  of  the  Church  of  England,  ministers  of  the 
Church  of  Scotland,  Roman  Catholic  priests,  and  sheriffs  and 
other  returning  officers,  —  and  except,  also,  English  and  Scotch 
peers.  Irish  peers  not  elected  to  the  Lords  are  eligible  and  have 
often  sat  in  the  House.2  The  persons  thus  excepted,  —  all  save 
the  peers,  at  least,  —  can  neither  sit  nor  vote. 

As  a  matter  of  fact  no  House  of  Commons  previous  to  the 
present  one  has  ever  lived  its  full  term.  A  dissolution,  for  the 
purpose  of  a  fresh  appeal  to  the  constituencies,  has  always  cut 
it  off  before  its  statutory  time.  The  average  duration  of  Parlia- 
ments has  been  less  than  four  years.  The  longest  Parliament  of 
the  nineteenth  century  (elected  in  1820)  lived  six  years,  one 
month,  and  twelve  days.  The  present  Parliament  has  prolonged 
its  own  life  to  avoid  a  general  election  during  the  war  and  has 
been  in  existence  since  1911. 

1  Until  1911  the  term  was  seven  years. 

2  Lord  Palmerston,  for  example,  was  an  Irish  peer. 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  211 

There  is  no  property  qualification  for  election  to  the  House 
now,  as  there  was  formally ;  and  the  members  receive  £  400  a 
year  for  their  services. 

Summons,  Electoral  Writ,  Prorogation. — No  standing 
statutes  govern  the  time  for  electing  Parliaments.  Parliament 
assembles  upon  summons  from  the  Crown  (which,  like  all  other 
acts  of  the  Sovereign,  now  really  emanates  from  the  ministers)  ; 
and  the  time  for  electing  members  is  set  by  writs  addressed 
to  the  sheriffs  and  the  mayors.  Parliament  is  also  *  pro- 
rogued' (adjourned  for  the  session)  by  the  Sovereign  (that  is, 
the  Cabinet) ;  and  assembles  again,  after  recess,  by  special 
summons. 

The  summons  for  a  new  Parliament  must  be  issued  at  least 
thirty-five  days  before  the  day  set  for  its  assembling;  the 
summons  to  a  prorogued  Parliament  at  least  fourteen  days  before- 
hand. It  is  now  the  invariable  custom  to  assemble  Parliament 
once  every  year  about  the  middle  of  February,  and  to  keep  it  in 
session  from  that  time  till  about  the  middle  of  August. 

If  a  seat  fall  vacant  during  a  session,  a  writ  is  issued  for  an 
election  to  fill  it  upon  motion  of  the  House  itself ;  if  a  vacancy 
occur  during  a  recess,  the  writ  is  issued  at  the  instance  of  the 
Speaker  of  the  House. 

Since  1867  the  duration  of  Parliament  has  not  been  liable  to 
be  affected  by  a  demise  of  the  Crown ;  before  1695  Parliament 
died  with  the  monarch.  In  that  year  it  was  enacted  that  Parlia- 
ment should  last  for  six  months  after  the  demise  of  the  Crown, 
if  not  sooner  dissolved  by  the  new  Sovereign.  Parliament,  it  is 
now  provided,  must  assemble  immediately  upon  the  death  of  the 
Sovereign.  If  the  Sovereign's  death  take  place  after  a  dissolu- 
tion and  before  the  day  fixed  for  the  convening  of  the  new  Par- 
liament, the  old  Parliament  is  to  come  together  for  six  months, 
if  necessary,  but  for  no  longer  term. 

Organization  of  the  House.  —  The  Commons  elect  their 
own  Speaker  (Spokesman) ;  their  clerk  and  sergeant-at-arms  are 
appointed  by  the  Crown.  The  business  of  the  House  is,  as  we 
have  seen  (page  197),  quite  absolutely  under  the  direction  of  its 
great  committee,  the  Cabinet.  Certain  days  of  the  week  are  set 


212  THE   GOVERNMENT    OF   GREAT   BRITAIN. 

apart  by  the  rules  for  the  consideration  of  measures  introduced 
by  private  members,  but  most  of  the  time  of  the  House  is  devoted 
to  '  government  bills.7 1  The  majority  put  themselves  in  the  hands 
of  their  party  leaders,  the  ministers,  and  the  great  contests  of 
the  session  are  between  the  minority  on  one  side  of  the  chamber 
and  the  ministerial  party,  or  majority,  on  the  other  side. 

Down  the  centre  of  the  hall  in  which  the  House  sits  runs  a 
very  broad  aisle.  The  Speaker's  seat  stands,  upon  an  elevated 
place,  at  the  farther  end  of  this  aisle,  and  below  it  are  the  seats 
and  tables  of  the  clerks  and  a  great  table  stretching  some  distance 
down  the  aisle,  for  the  reception  of  the  Sergeant's  mace  and 
various  books,  petition  boxes,  and  papers.  The  benches  on  either 
side  of  the  aisle  face  each  other.  Those  which  rise,  in  tiers,  to 
the  Speaker's  right  are  occupied  by  the  majority,  the  Cabinet 
ministers,  their  leaders,  sitting  on  the  front  bench  by  the  great 
table.  This  front  bench  is  accordingly  called  the  '  Treasury 
Bench,'  —  the  Treasury  being  the  leading  Cabinet  office.  On  the 
benches  which  rise  to  the  Speaker's  left  sit  the  minority,  their 
leaders  also  (the  '  leaders  of  the  Opposition,'  —  the  minority 
being  expected,  generally  with  reason,  to  be  opposed  to  all  minis- 
terial proposals)  on  the  front  bench  by  the  table,  and  so  directly 
facing  the  ministers,  only  the  table  intervening. 

The  House  of  Lords:  its  Composition.  —  The  House 
of  Lords  consisted  on  April  4th,  1918,  of  six  hundred  and  fifteen 
English  hereditary  peers  (Dukes,  Marquises,  Earls,  Viscounts, 
Barons) ;  the  two  archbishops  and  twenty-four  bishops,  holding 
their  seats  by  virtue  of  their  offices  ;  sixteen  Scottish  representa- 
tive peers,  elected  by  the  whole  body  of  Scottish  peers  to  sit  for 
the  term  of  Parliament ;  twenty-seven  Irish  peers,  elected  by 
the  peers  of  Ireland  to  sit  for  life 2 ;  and  seven  judicial  members 
known  as  Lords  of  Appeal  in  Ordinary  (pages  216,  218,  219), 
sitting  as  life-peers  only,  by  virtue  of  their  office. 

1  Due  to  the  war,  the  Government  now  possesses  the  whole  time  of  the 
House  except  an  hour  allowed  to  members  for  general  discussion  on  the 
motion  for  adjournment  at  each  sitting. 

2  Earl  Curzon  of  Kedleston,  the  28th  Irish  Representative  Peer,  is  also  a 
peer  of  the  United  Kingdom, 


THE   GOVERNMENT  OF  GREAT   BRITAIN.  213 

There  is  no  necessary  limitation  to  the  number  of  hereditary 
English  peers.  Peers  can  be  created  at  will  by  the  Crown  (that 
is,  by  the  ministry),  and  their  creation  is  in  fact  frequent.  Two 
hundred  and  thirty-one  peers  have  been  created  since  1900.  The 
number  of  Scottish  and  Irish  peers  is  limited  by  statute. 

The  House  of  Lords  is  summoned  to  its  sessions  when  the 
House  of  Commons  is,  and  the  two  must  always  be  summoned 
together. 

Function  of  the  House  of  Lords  in  Legislation.  —  The 
House  of  Lords  was  until  1911,  in  legal  theory,  coequal  in  all 
respects  with  the  House  of  Commons ;  but,  in  fact,  its  authority 
was  politically  very  inferior.  By  the  Parliament  Act  of  1911, 
this  actual  inferiority  was  given  statutory  recognition  and  the 
House  of  Lords  became  thereby  a  subordinate  legislative 
chamber. 

In  the  elections  of  1906  the  Liberals  won  an  overwhelming 
victory  and  under  the  leadership  of  Lloyd  George  as  Chancellor 
of  the  Exchequer  radical  changes  in  the  system  of  taxation  were 
proposed  in  the  Finance  Bill  of  1909.  When  this  Bill  went  to 
the  Lords,  it  was  rejected  though  the  practice  had  been  so  long 
observed  as  to  be  regarded  as  one  of  the  conventions  of  the  con- 
stitution that  the  Lords  must  accept  the  financial  legislation 
passed  by  the  Commons.  The  House  was  dissolved  and  an  appeal 
to  the  people  was  taken,  with  the  result  that  the  Liberals  were 
returned  to  power  but  with  a  reduced  majority.  The  Finance 
Bill  was  reintroduced  and  successfully  passed.  But  the  Liberals 
were  determined  that  the  powers  of  the  Lords  should  be  limited 
and  a  series  of  resolutions  were  introduced  and  passed  in  the 
Commons  to  the  effect  (1)  that  the  House  of  Lords  should  by 
law  be  deprived  of  the  power  of  rejecting  or  amending  a  money 
bill ;  (2)  that  the  power  of  the  Lords  to  veto  other  bills  should 
be  limited  by  law;  and  (3)  that  the  duration  of  a  parliament 
should  be  limited  to  a  maximum  period  of  five  years.  The  House 
of  Lords  itself  took  up  the  question  of  its  own  reform  and  various 
proposals  were  introduced,  looking,  however,  rather  to  a  change 
in  the  method  of  constituting  that  body  rather  than  to  a  change 
in. its  powers.  These  resolutions  adopted  by  the  Lords  recog- 


214  THE    GOVERNMENT    OF    GREAT   BRITAIN. 

nized  the  right  of  the  Commons  with  respect  to  money  bills  of  a 
purely  financial  character;  provided  a  plan  for  determining 
whether  or  not  a  bill  was  of  this  character  by  a  committee  of  the 
two  Houses  in  which  the  Speaker  of  the  House  of  Commons 
should  have  the  deciding  vote ;  that  with  respect  to  other  bills 
about  which  the  Houses  might  differ  in  two  successive  sessions 
with  an  interval  of  not  less  than  a  year,  the  matter  should  be 
settled  at  a  joint  sitting  of  the  two  Houses  unless  it  referred  to 
a  matter  of  grave  importance,  in  which  case  it  should  be  sub- 
mitted to  the  people  by  referendum ;  and  that  the  hereditary 
principle  should  not  be  the  sole  basis  of  membership  in  the 
Lords. 

A  fresh  appeal  to  the  people  was  taken  in  December,  1910, 
and  again  the  Liberals  were  returned  to  power  and  the  Parliament 
Bill  was  reintroduced  without  change  and  passed  with  only  minor 
amendment.  The  Commons  claimed  that  the  people  had  ap- 
proved of  the  Bill  at  the  general  election,  and  when  it  went  to 
the  Lords  and  was  there  amended,  the  ministry  let  it  be  known 
that  it  would  accept  no  compromise  and  that  the  Bill  would  be 
passed  if  enough  new  peers  must  be  created  to  secure  a  majority. 
Faced  with  this  threat  the  Lords  yielded  and  the  Bill  was  passed 
as  approved  by  the  House.  Thus  ended  one  of  the  most  momen- 
tous struggles  in  English  constitutional  history,  and  as  a  result  the 
House  of  Commons  is  practically  supreme.  The  Lords  have 
retained  only  a  right  of  criticism  and  a  suspensive  veto. 

The  Parliament  Act  of  1911.  —  Both  houses  had  accepted 
the  principle  of  reforming  the  House  of  Lords  by  substituting  a 
popular  for  the  hereditary  basis,  and  this  principle  was  declared 
in  the  preamble  to  the  Act,  but  as  yet  no  steps  have  been  taken 
to  put  such  a  reform  into  operation.  The  Lords  remain  an  heredi- 
tary body  but  with  greatly  restricted  powers. 

In  the  first  place  the  power  of  the  Lords  over  Money  Bills 
has  been  entirely  taken  away.  If  a  Money  Bill  which  has  been 
passed  by  the  House  of  Commons,  and  sent  up  to  the  House  of 
Lords  at  least  one  month  before  the  end  of  the  session,  is  not 
passed  by  the  House  of  Lords  without  amendment  within  one 
month  after  it  has  been  so  sent  up,  the  Bill  shall,  unless  the 


THE   GOVERNMENT    OF    GREAT   BRITAIN.  215 

House  of  Commons  direct  to  the  contrary,  be  presented  to  his 
Majesty  and  become  an  Act  of  Parliament  on  the  royal  assent 
being  signified,  notwithstanding  that  the  House  of  Lords  has 
not  consented  to  the  Bill.  The  decision  as  to  what  is  a  Money 
Bill  under  the  terms  of  the  Act  rests  with  the  Speaker  of  the 
House  of  Commons,  who  shall  indorse  thereon  his  certificate  to 
that  effect. 

In  the  second  place  if  any  Public  Bill  other  than  a  Money  Bill, 
or  a  Bill  containing  any  provisions  to  extend  the  maximum 
duration  of  Parliament  beyond  five  years,  is  passed  by  the  House 
of  Commons  in  three  successive  sessions,  whether  of  the  same 
Parliament  or  not,  and  is  rejected  by  the  Lords  in  each  of  those 
sessions,  the  Bill  shall,  unless  the  House  of  Commons  directs  to 
the  contrary,  be  presented  to  his  Majesty  and  shall  become  an 
Act  of  Parliament  on  receiving  the  Royal  Assent,  notwithstand- 
ing that  the  House  of  Lords  has  not  consented  to  the  Bill.  A 
period  of  two  years  must  elapse  between  the  date  of  the  second 
reading  of  the  Bill  in  the  first  of  the  three  successive  sessions  of 
the  House  of  Commons  and  its  passage  in  the  third  session.  The 
Speaker  shall  likewise  put  his  certificate  upon  Bills  of  this  char- 
acter to  the  effect  that  all  the  provisions  of  the  Parliament  Act 
have  been  complied  with. 

The  certificate  of  the  Speaker  shall  in  both  cases  be  conclusive 
and  shall  not  be  questioned  in  any  court  of  law.  By  this  Act 
the  time  fixed  for  the  maximum  duration  of  Parliament  was  five 
years. 

The  House  of  Lords  as  a  Supreme  Court.  —  The  House  of 
Lords  is  still,  however,  in  fact  as  well  as  in  form,  the  supreme 
court  of  appeal  in  England,  though  it  has  long  since  ceased  to 
exercise  its  judicial  functions  (inherited  from  the  Great  Council 
of  Xorman  times)  as  a  body.  Those  functions  are  now  always 
exercised  by  the  Lord  Chancellor,  who  is  ex  ojficio  president  of 
the  House  of  Lords,  and  four  Lords  of  Appeal  in  Ordinary,  who 
are  learned  judges  appointed  as  life  peers,  specially  to  perform 
this  duty.  These  special  *  Law  Lords '  are  assisted  from  time  to 
time  by  other  lords  who  have  served  as  judges  of  the  higher 
courts  or  who  are  specially  learned  in  the  law. 


216  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

Legislation,  therefore,  is  controlled  by  the  House  of  Com- 
mons, the  interpretation  of  the  law  by  the  judicial  members 
of  the  House  of  Lords.  The  House  of  Lords  has  a  limited  share 
with  the  popular  chamber  in  the  right  of  law-making,  but  cannot 
assert  that  right  further  than  to  cause  delay.  The  Sovereign  has 
theoretically  the  right  to  negative  legislation ;  but  the  Sovereign 
is  in  the  hands  of  the  ministers,  and  the  ministers  are  in  the 
hands  of  the  Commons  ;  and  legislation  is  never  negatived. 

The  Constitution  of  England  consists  of  law  and  precedent. 
She  has  great  documents  like  Magna  Charta  at  the  foundation 
of  her  institutions  ;  but  Magna  Charta  was  only  a  royal  ordi- 
nance. She  has  great  laws  like  the  Bill  of  Rights  at  the  centre 
of  her  political  system;  but  the  Bill  of  Rights  was  only  an 
act  of  Parliament.  She  has  no  written  constitution,  and  Par- 
liament may,  in  theory,  change  the  whole  structure  and  principle 
of  her  institutions  by  mere  Bill.  But  in  fact  Parliament  dare 
not  go  faster  than  public  opinion :  and  public  opinion  in  England 
is  steadily  and  powerfully  conservative. 

The  Courts  of  Law.  —  The  Administration  of  justice  has 
always  been  greatly  centralized  in  England.  From  a  very  early 
day  judges  of  the  king's  court  have  'gone  on  circuit,'  holding 
their  assizes  (sittings)  in  various  parts  of  the  country,  in  order 
to  save  suitors  the  vexation  and  expense  of  haling  their  adver- 
saries always  before  the  courts  in  London.  But  these  circuit 
judges  travelled  from  place  to  place  under  special  commissions 
from  the  central  authorities  of  the  state,  and  had  no  permanent 
connections  with  the  counties  in  which  their  assizes  were  held : 
they  came  out  from  London,  were  controlled  from  London,  and, 
their  circuit  work  done,  returned  to  London.  It  was,  moreover, 
generally  only  the  three  courts  of  Common  Law  (the  Court  of 
King's  Bench,  the  Court  of  Common  Pleas,  and  the  Court  of 
Exchequer)  that  sent  their  judges  on  circuit;  the  great,  over- 
shadowing Court  of  Chancery,  which  arrogated  so  wide  a  juris- 
diction to  itself,  drew  all  its  suitors  to  its  own  chambers  in  West- 
minster. 

The  only  thing  lacking  to  perfect  the  centralization  was  a 
greater  uniformity  of  organization  and  a  less  haphazard  dis- 


TNI:  <;<>VI:I;NMI-:XT  OF  GREAT  BRITAIN.  217 

tribution  of  jurisdiction  among  the  various  courts.  This  lack 
was  supplied  by  a  great  Judicature  Act  passed  in  1873.  By  that 
Act  (which  went  into  force  on  the  1st  November,  1875),  and 
subsequent  additional  legislation  extending  to  1879,  the  courts 
of  law,  which  had  grown,  as  we  have  seen  (page  185),  out  of  that 
once  single  body,  the  ancient  Permanent  Council  of  the  Norman 
and  Plantagenet  kings,  were  at  last  reintegrated,  made  up  to- 
gether into  a  coordinated  whole. 

Judicial  Reform :  the  Reorganization  of  1873-1879.  —  These 
measures  of  reorganization  and  unification  had  been  preceded,  in 
1846,  by  a  certain  degree  of  decentralization.  Certain  so-called 
County  Courts  were  than  created,  which  are  local,  not  peripatetic 
Westminster,  tribunals,  and  which  have  to  a  considerable  extent 
absorbed  the  assize  business,  though  their  function,  theoretically, 
is  only  to  assist,  not  to  supplant,  the  assizes.  Now,  therefore,  the 
general  outlines  of  the  judicial  system  are  these.  The  general 
courts  of  the  kingdom  are  combined  under  the  name,  Supreme 
Court  of  Judicature.  This  court  is  divided  into  two  parts,  which 
are  really  two  quite  distinct  courts :  namely,  the  High  Court  of 
Justice  and  the  Court  of  Appeal ;  while  over  both,  as  the  court  of 
last  resort,  still  stands  the  House  of  Lords.  The  High  Court 
of  Justice  acts  in  three  divisions,  a  Chancery  Division,  a  King's 
Bench  Division,  and  a  Probate,  Divorce,  and  Admiralty  Division  ; 
and  these  three  divisions  constitute  the  ordinary  courts  of  law, 
inheriting  the  jurisdictions  suggested  by  their  names.  From 
them  an  appeal  lies  to  the  Court  of  Appeal ;  from  the  Court  of 
Appeal  to  the  House  of  Lords.  The  County  Courts  stand  related 
to  the  system  as  the  Assizes  do. 

"  The  Chancery  Division  has  five  judges  besides  its  presi- 
dent, the  Chancellor ;  the  Queen's  Bench  Division  has  fifteen 
judges,  of  whom  one,  the  Lord  Chief  Justice,  is  its  president; 
the  Probate,  Divorce,  and  Admiralty  Division  has  but  two  judges, 
of  whom  one  presides  over  the  other."  This  arrangement  into 
divisions  is  a  mere  matter  of  convenience ;  no  very  strict  dis- 
tinctions as  to  jurisdiction  are  preserved ;  and  any  changes  that 
the  judges  think  desirable  may  be  made  by  an  Order  in  Council. 
Thus  an  Exchequer  Division  and  a  Common  Pleas  division,  which 


218  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

at  first  existed,  in  preservation  of  the  old  lines  of  organization, 
were  abolished  by  such  an  Order  in  December,  1880.  The 
judges  assigned  to  the  various  Divisions  do  not  necessarily  or 
often  sit  together.  Cases  are  generally  heard  before  only  one 
judge ;  so  that  the  High  Court  may  be  said  to  have  the  effec- 
tive capacity  of  twenty-three  courts,  its  total  number  of 
judges  being  twenty-three.  Only  when  hearing  appeals  from 
inferior  tribunals,  or  discharging  some  other  function  differ- 
ent from  the  ordinary  trial  of  cases,  must  two  or  more  judges 
sit  together. 

The  Court  of  Appeals  may  hear  appeals  on  questions  both 
of  law  and  of  fact.  It  consists  of  the  Master  of  Eolls  and  five 
Lords  Justices,  who  may  be  said  to  constitute  a  permanent  and 
separate  bench,  and  of  the  presidents  of  the  three  Divisions  of 
the  High  Court,  who  may  be  called  its  occasional  members. 
Since  1891  Ex-Chancellors  are  ex  ojficio  members,  though  they  do 
not  ordinarily  sit.  Three  judges  are  necessary  to  exercise  its 
powers,  and,  in  practice,  its  six  permanent  members  divide  the 
work,  holding  the  court  in  two  independent  sections. 

The  House  of  Lords  may  sit,  when  acting  as  a  court,  when 
Parliament  is  not  in  session,  after  a  prorogation,  that  is,  or  even 
after  a  dissolution :  for  the  House  of  Lords  when  sitting  as  a  court 
is  like  its  legislative  self  only  in  its  modes  of  procedure.  In  all 
other  respects  it  is  totally  unlike  the  body  which  obeys  the  House 
of  Commons  in  law-making.  It  is  constituted  always,  as  a  court, 
of  the  Lord  Chancellor  and  at  least  two  of  the  Lords  of  Appeal  in 
Ordinary  of  whom  I  have  spoken  (page  212)  ;  only  sometimes  are 
there  added  to  these  a  third  Lord  of  Appeal  in  Ordinary,  an  ex- 
Lord  Chancellor,  or  one  or  more  of  such  judges  or  ex-judges  of 
the  higher  courts  as  may  have  found  their  way  to  peerages. 
Other  members  of  the  House  never  attend;  or,  attending, 
never  vote. 

A  Judicial  Committee  of  the  Privy  Council,  of  which  also 
the  Lord  Chancellor  is  a  member,  and  which  now  consists  mainly 
of  the  same  Lords  of  Appeal  in  Ordinary  who  act  in  judicial 
matters  as  the  House  of  Lords,  constitutes  a  court  of  last  resort 


THE   GOVERNMENT    OF    GREAT    BRITAIN.  219 

for  India,  the  Colonies,  the  Channel  Islands,  and  the  Isle  of  Man, 
as  well  as,  within  certain  limits,  as  a  court  of  appeal  from  the 
Probate,  Divorce,  and  Admiralty  Division  of  the  High  Court  of 
Justice. 

The  Lord  Chancellor  is  the  most  notable  officer  in  the  whole 
system.  He  is  president  of  the  House  of  Lords,  of  the  Court  of 
Appeal,  of  the  High  Court  of  Justice,  and  of  the  Chancery  Divi- 
sion of  the  High  Court,  and  he  is  a  member  of  the  Judicial  Com- 
mittee of  the  Privy  Council ;  and  he  actually  sits  in  all  of  these 
except  the  High  Court,  —  in  the  House  of  Lords  and  the  Privy 
Council  always,  in  the  Court  of  Appeal  often.  More  singular 
still,  he  is  the  political  officer  of  the  law  :  he  is  a  member  always 
of  the  Cabinet,  and,  like  the  other  members,  belongs  to  a  party, 
and  goes  in  or  out  of  office  according  to  the  favor  of  the  House  of 
Commons,  exercising  while  in  office,  in  some  sense,  the  functions 
of  a  Minister  of  Civil  Justice.1 

Civil  Cases  are  heard  either  by  judges  of  the  High  Court 
in  London,  by  judges  of  that  court  sitting  on  circuit  in  the  various 
'assize  towns'  of  the  county,  of  which  there  is  always  at  least  one 
for  each  county,  or  by  the  County  Courts  created  in  1846,  which 
differ  from  the  old  county  courts,  long  since  decayed  and  now  de- 
prived of  all  judicial  functions,  both  in  their  organization  and  in 
their  duties.  They  consist,  not  of  the  sheriff  and  all  the  freemen  of 
the  shire,  but  of  single  judges,  holding  their  offices  during  good 
behavior,  assisted  by  permanent  ministerial  officers,  and  exercising 
their  jurisdiction  not  over  counties  but  in  districts  much  smaller 
than  the  counties.  They  are  called  county  courts  only  by  way  of 
preserving  an  ancient  and  respected  name. 

The  County  Courts  have  jurisdiction  in  all  cases  of  debt  or  dam- 
age where  the  sum  claimed  does  not  exceed  £50,  and  in  certain  equity  cases 
where  not  more  than  £500  is  involved, —  except  that  cases  of  slander,  libel, 
seduction,  and  breach  of  promise  to  marry,  as  well  as  all  matrimonial  cases, 
are  withheld  from  them.  At  least,  such  is  their  jurisdiction  in  rough  out- 
line. A  full  account  "would  involve  many  details ;  for  it  has  been  thq 
tendency  of  all  recent  judicial  legislation  in  England  to  give  more  and  more 

i  Maitland,  p.  68. 


220  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

business,  even  of  the  more  important  kind,  to  these  Courts.  Their  normal 
importance  may  be  judged  from  the  fact,  stated  by  Mr.  Maitland,  that 
"most  of  the  contentious  litigation  in  England  is  about  smaller  sums 
than"  £50. 

A  judge  of  the  High  Court  may  send  down  to  a  county  court,  upon 
the  application  of  either  party,  cases  of  contract  in  which  the  sum  claimed 
does  not  exceed  £100.  Any  case,  however  small  the  pecuniary  claim  in- 
volved, may  be  removed  from  the  county  to  the  High  Court  if  the  judge  of 
the  county  court  will  certify  that  important  principles  of  law  are  likely  to 
arise  in  it,  or  if  the  High  Court  or  any  judge  thereof  deems  it  desirable 
that  it  should  be  removed.  Appeals  from  a  county  court  to  the  High 
Court  are  forbidden  in  most  cases  in  which  less  than  £20  is  involved. 

The  county  court  system  rests  upon  the  basis  of  a  division  of  the 
country  into  fifty-six  circuits.  All  but  one  or  two  of  these  include  several 
*  districts '  — the  districts  numbering  about  500.  Each  district  has  its  own 
separate  court,  with  its  own  offices,  registrar,  etc. ;  but  the  judges  are  ap- 
pointed for  the  circuits,  —  one  for  each  circuit.  They  are  appointed  by 
the  Lord  Chancellor  from  barristers  of  seven  years'  standing.1 

Juries  are  falling  more  and  more  into  disuse  in  England  in  civil 
cases.  In  all  the  more  important  causes,  outside  the  Chancery  Division, 
whose  rule  of  action,  like  that  of  the  old  Chancery  Court,  is  '  no  jury,'  a 
jury  may  be  impanelled  at  the  desire  of  either  party  ;  but  many  litigants 
now  prefer  to  do  without,  —  especially  in  the  County  Courts,  where  both 
the  facts  and  the  law  are  in  a  large  majority  of  the  cases  passed  upon  by 
the  judge  alone,  without  the  assistance  of  the  jury  of  five  which  might 
in  these  courts  be  summoned  in  all  cases  of  above  £20  value. 

Criminal  Cases  are  tried  either  before  the  county  Justices 
of  the  Peace,  who  are  unpaid  officers  appointed  by  the  Chancellor 
upon  the  recommendation  of  the  Lords  Lieutenant  of  the  Coun- 
ties ;  before  borough  Justices,  who  are  paid  judges  much  like 
all  others  ;  or  before  judges  of  the  High  Court  on  circuit.  The 
jurisdiction  of  the  Justices  may  be  said  to  include  all  but  the 
gravest  offences,  all  but  those,  namely,  which  are  punishable  by 
death  or  by  penal  servitude,  and  except,  also,  perjury,  forgery, 
bribery,  and  libel.  There  are  many  Justices  for  each  county, 
there  being  no  legal  limit  to  their  number;  and  they  exercise 
their  more  important  functions  at  general  Quarter  Sessions,  at 
general  sessions,  that  is,  held  four  times  yearly.  The  criminal 
assizes  of  the  High  Court  also  are  held  four  times  a  year.  All 

1  The  various  Acts  affecting  the  County  Courts  were  amended  and  consoli- 
dated by  the  County  Courts  Act,  1888. 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  221 

criminal  cases,  except  those  of  the  pettiest  character,  such  aa 
police  cases,  are  tried  before  juries. 

"  About  one-half  of  the  criminal  trials,"  it  is  stated,1  "  take  place 
at  county  sessions,  about  one-fourth  at  borough  sessions,  the  rest  at  Assizes 
or  the  Central  Criminal  Court,"  the  great  criminal  court  of  London. 

Quarter  and  Petty  Sessions.  —  For  the  exercise  of  all  their 
more  important  judicial  functions  the  Justices  meet  quarterly,  in  Quarter 
Sessions  ;  but  for  minor  duties  in  which  it  is  not  necessary  for  more  than 
two  Justices  to  join,  there  are  numerous  Petty  Sessions  held  at  various 
points  in  the  counties.  Each  county  is  divided  by  its  Quarter  Sessions 
into  petty  sessional  districts,  and  every  neighborhood  is  given  thus  its  own 
court  of  Petty  Sessions,  —  from  which  in  almost  all  cases  an  appeal  lies  to 
Quarter  Sessions.  Thus  the  important  function  of  licensing  (page  233)  is 
exercised  by  Petty  Sessions,  subject  to  appeal  to  the  whole  bench  of 
Justices. 

The  Justices  of  the  Peace  were,  as  we  shall  see  more  particu- 
larly in  another  connection  (pages  226-227),  the  general  governmental 
authorities  of  the  counties  until  the  reform  of  local  government  effected 
in  1888,  exercising  functions  of  the  most  various,  multifarious,  and  influ- 
ential sort.  They  are  generally  country  gentlemen  of  high  standing  in 
their  counties,  and  serve,  as  already  stated,  without  pay.  They  are 
appointed,  practically,  for  life.  The  'Commission  of  the  Peace,' — the 
commissioning,  that  is,  of  Justices  of  the  Peace,  —  originated  in  the  four- 
teenth century,  and  has  had  a  long  history  of  interesting  development. 
Considering  the  somewhat  autocratic  nature  of  the  office  of  Justice,  it 
has  been,  on  the  whole,  exercised  with  great  wisdom  and  public  spirit, 
and  during  most  periods  with  extraordinary  moderation,  industry,  and 
effectiveness. 

The  duties  which  Americans  associate  with  the  office  of  Justice  of 
the  Peace  are  exercised  in  England,  not  by  the  bench  of  Justices  sitting  in 
Quarter  Sessions,  —  they  then  constitute,  as  we  have  seen,  a  criminal  court 
of  very  extensive  jurisdiction,  — but  by  the  Justices  singly,  sitting  either 
formally  or  informally.  A  single  Justice  may  conduct  the  preliminary 
examination  of  a  person  charged  with  crime,  and  may  commit  for  trial  if 
reasonable  ground  of  suspicion  be  proved.  A  single  Justice  can  also  issue 
search  warrants  to  the  constabulary  for  the  detection  of  crime,  etc. 

Police.  —  The  police  force,  or,  in  more  English  phrase, 
the  constabulary,  of  the  kingdom  is  overseen  from  London  by  the 
Home  Office,  which  makes  all  general  rules  as  to  discipline,  pay, 
etc.,  appoints  royal  inspectors,  and  determines,  under  the  Treas- 
ury, the  amount  of  state  aid  to  be  given  to  the  support  of  the 

i  Maitland,  p.  86. 


222  THE   GOVERNMENT   OF   GREAT  BRITAIN. 

forces ;  but  all  the  actual  administration  of  the  system  is  under- 
taken by  the  local  authorities.  In  the  Counties  a  joint  Com- 
mittee of  Quarter  Sessions  and  the  County  Council  appoint  the 
Chief  Constable,  who  appoints  and  governs  the  force  with  powers 
of  summary  dismissal  and  punishment,  but  who  acts  in  all  things 
subject  to  the  governing  control  of  the  Committee  (page  235).  In 
those  towns  which  undertake  to  maintain  a  force  distinct  from 
that  of  the  County  the  Head  Constable  is  chosen  by  the  town 
authorities  and  the  direction  of  the  force  is  superintended  by  a 
'  Watch  Committee  ;  of  the  Town  Council.  London,  which  em- 
ploys, it  is  stated,  one-third  of  the  entire  police  force  of  the 
kingdom,  has  been  given  a  special,  exceptional  system  of  its  own. 
The  city  police  are  governed  by  a  Commissioner  and  two  Assist- 
ant Commissioners  who  are  appointed  by  the  Home  Secretary  and 
serve  directly  under  his  authority. 

The  police  throughout  the  country  are  given  something  like  mili- 
tary drill  and  training,  the  organization  being  made  as  perfect,  the  training 
as  thorough,  and  the  discipline  as  effective  as  possible.  Ex-army  officers 
are  preferred  for  the  office  of  Chief  Constable. 

II.   LOCAL  GOVERNMENT. 

Complex  Character  of  Local  Government  in  England. — 

The  subject  of  local  government  in  England  is  one  of  extreme 
complexity  and,  therefore,  for  my  present  purpose  of  brief  de- 
scription, one  of  extreme  difficulty.  So  perfectly  unsystematic, 
indeed,  are  the  provisions  of  English  law  in  this  field  that  most 
of  the  writers  who  have  undertaken  to  expound  them,  —  even  to 
English  readers,  —  have  seemed  to  derive  a  certain  zest  from  the 
despairful  nature  of  their  task,  —  a  sort  of  forlorn -hope  enthusi- 
asm. The  institutions  of  local  government  in  England  have 
grown  piece  by  piece  as  other  English  institutions  have,  and  not 
according  to  any  complete  or  logical  plan  of  statutory  construc- 
tion. They  are  patch-work,  not  symmetrical  net-work,  and  the 
patches  are  of  all  sizes,  shapes,  and  materials. 

"For  almost  every  new  administrative  function,"  complains  one 
writer  on  the  subject,  *'  the  Legislature  has  provided  a  new  area  contain- 
ing a  new  constituency,  who  by  a  new  method  of  election  choose  candi- 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  223 

dates  who  satisfy  a  new  qualification,  to  sit  upon  a  new  board,  during  a 
new  term,  to  levy  a  new  rate  [tax],  and  to  spend  a  good  deal  of  the  new 
revenues  in  paying  new  officers  and  erecting  new  buildings."  l 

It  has  been  the  habit  of  English  legislators,  instead  of 
perfecting,  enlarging,  or  adapting  old  machinery,  to  create  all 
sorts  of  new  pieces  of  machinery  with  little  or  no  regard  to  their 
fitness  to  be  combined  with  the  old  or  with  each  other.  The 
Local  Government  Act  of  1888  represents  the  first  deliberate  at- 
tempt at  systematization ;  but  even  that  Act  did  not  effect  system, 
and  itself  introduced  additional  elements  of  confusion  by  first 
adopting  another  Act  (the  Municipal  Corporations  Act  of  1882) 
as  its  basis  and  then  excepting  particular  provisions  of  that  Act 
and  itself  substituting  others  in  respect,  not  of  all,  but  of  some 
of  the  local  administrative  bodies  meant  to  be  governed  by  it. 
The  supplementary  legislation  of  1894  introduced  some  further 
elements  of  consistent  system;  but  did  not  after  all  very  much 
simplify  existing  methods.  It  would  seem  as  logical  a  plan  of 
description  as  any,  therefore,  to  discuss  the  older  divisions  and 
instrumentalities  first  and  then  treat  afterwards  of  more  recent 
legislative  creations  as  of  modifications,  of  however  haphazard  a 
kind,  of  these. 

General  Characterization.  —  In  general  terms,  then,  it 
may  be  said,  that  throughout  almost  the  whole  of  English  history, 
only  the  very  earliest  periods  excepted,  counties  and  towns  have 
been  the  principal  units  of  local  government;  that  the  parishes 
into  which  the  counties  have  been  time  out  of  mind  divided, 
though  at  one  time  of  very  great  importance  as  administrative 
centres,  were  in  course  of  time  in  great  part  swallowed  up  by 
feudal  jurisdictions,  and  now  retain  only  a  certain  minor  part  in 
the  function,  once  exclusively  their  own,  of  caring  for  the  poor; 
and  that  this  ancient  framework  of  counties,  towns,  and  parishes 
has,  of  late  years,  been  extensively  overlaid  and  in  large  part 
obscured :  (a)  by  the  combination  (1834)  of  parishes  into  '  Unions  7 
made  up  quite  irrespective  of  county  boundaries  and  charged  not 
only  with  the  immemorial  parish  duty  of  maintaining  the  poor  but 
often  with  sanitary  regulation  also  and  school  superintendence, 

1  Local  Administration  (Imperial  Parliament  Series),  by  Wm.  Rathbone^ 
Albert  Pell,  and  F.  C.  Montague,  p.  14. 


224  THE    GOVERNMENT    OF    GREAT   BRITAIN. 

and  generally  with  a  miscellany  of  other  functions;  (6)  by  the 
creation  of  new  districts  for  the  care  of  highways;  (c)  by  new 
varieties  of  town  and  semi-town  government;  and  (d)  by  the  sub- 
division of  the  counties  (1889)  into  new  administrative  'districts/ 
charged  with  general  administrative  functions.  The  only  dis- 
tinction persistent  enough  to  serve  as  a  basis  for  any  classifica- 
tion of  the  areas  and  functions  of  the.  local  administration  thus 
constructed  is  the  distinction  between  Rural  Administration  and 
Urban  Administration,  — a  distinction  now  in  part  destroyed  by 
the  Act  of  1888;  and  of  these  two  divisions  of  administration 
almost  the  only  general  remark  which  it  seems  safe  to  venture 
is,  that  Rural  Administration  has  hitherto  rested  much  more 
broadly  than  does  Urban  on  old  historical  foundations. 

The  County:  its  Historical  Rootage.  —For  the  County, 
with  its  influential  Justices  of  the  Peace  and  its  wide  adminis- 
trative activities,  is  still  the  vital  centre  of  rural  government  in 
England;  and  the  Counties  are  in  a  sense  older  than  the  kingdom 
itself.  Many  of  them,  as  we  have  seen  (page  180),  represent  in 
their  areas,  though  of  course  no  longer  in  the  nature  of  their 
government,  separate  Saxon  kingdoms  of  the  Heptarchy  times. 
When  they  were  united  under  a  single  throne  they  retained  (it 
would  appear)  their  one-time  king  and  his  descendants  in  the 
elder  male  line  as  their  eoldormen.  They  retained  also  their  old 
general  council,  in  which  eoldorman  and  bishop  presided,  though 
there  was  added  presently  to  these  presidents  of  the  older  order 
of  things  another  official,  of  the  new  order,  the  king's  officer,  the 
Sheriff.  To  this  council  went  up,  as  was  of  old  the  wont,  the 
priest,  the  reeve,  and  four  select  men  from  every  township, 
together  with  the  customary  delegates  from  the  'hundreds/ 

Of  course  the  Counties  no  longer  retain  these  antique 
forms  of  government;  scarcely  a  vestige  of  them  now  remains. 
But  the  old  forms  gave  way  to  the  forms  of  the  present  by  no 
sudden  or  violent  changes,  and  some  of  the  organs  of  county  gov- 
ernment now  in  existence  could  adduce  plausible  proof  of  their 
descent  from  the  manly,  vigorous,  self-centred  Saxon  institutions 
of  the  ancient  time. 

Early  Evolution  of  the  County  Organs.  —  In  Norman 
times  the  eoldorman's  office  languished  in  the  shadow  of  the  Sher- 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  225 

iff's  great  authority.  The  spiritual  and  temporal  courts  were 
separated,  too,  and  the  bishop  withdrew  in  large  measure  from 
official  participation  in  local  political  functions.  The  County 
Court  became  practically  the  Sheriff's  Court;  its  suitors  the  free- 
holders. Its  functions  were,  however,  still  considerable:  it  chose 
the  officers  who  assessed  the  taxes;  it  was  the  medium  of  the 
Sheriff's  military  administration;  and  it  was  still  the  principal 
source  of  justice.  But  its  duties  were  not  slow  to  decay.  As  a 
Court  it  was  speedily  handed  over  to  the  king's  itinerant  justices, 
who  held  their  assizes  in  it  and  heard  all  important  cases,  all 
'pleas  of  the  Crown.'  Its  financial  functions  became  more  and 
more  exclusively  the  personal  functions  of  the  Sheriffs,  who  were 
commonly  great  barons,  who  managed  in  some  instances  for  a 
little  while  to  make  their  office  hereditary,  and  who  contrived 
oftentimes  to  line  their  own  pockets  with  the  proceeds  of  the 
taxes:  for  great  barons  who  were  sheriffs  were  sometimes  also 
officials  of  the  Exchequer,  and  as  such  audited  their  own  accounts. 
The  local  courts  at  last  became  merely  the  instruments  of  the 
Sheriffs  and  of  the  royal  judges. 

Decline  of  the  Sheriff's  Powers.  —  It  was  the  overbearing 
power  of  the  Sheriffs,  thus  developed,  that  led  to  the  great 
changes  which  were  to  produce  the  county  government  of  our  own 
day.  The  interests  alike  of  the  Court  and  of  the  people  became 
enlisted  against  them.  The  first  step  towards  displacing  them 
was  taken  wlien  the  royal  justices  were  sent  on  circuit.  Next, 
in  1170,  under  Henry  II. 's  capable  direction,  the  great  baronial 
sheriffs  were  tried  for  malfeasance  in  office,  and,  though  influen- 
tial enough  to  escape  formal  conviction,  were  not  influential 
enough  to  retain  their  offices.  They  were  dismissed,  and  re- 
placed by  Exchequer  officials  directly  dependent  upon  the  Crown. 
In  1194,  in  the  next  reign,  it  was  arranged  that  certain  'custo- 
dians of  pleas  of  the  Crown '  should  be  elected  in  the  counties,  to 
the  further  ousting  of  the  Sheriffs  from  their  old-time  judicial 
prerogatives.  Then  came  Magna  Charta  (1215)  and  forbade  all 
participation  by  Sheriffs  in  the  administration  of  the  king's  jus- 
tice. Finally  the  tenure  of  the  office  of  Sheriff,  which  was  by  that 
time  little  more  than  the  chief  place  in  the  militia  of  the  county 
and  the  chief  ministerial  office  in  connection  with  the  admiiiistra- 


226  THE   GOVERNMENT    OF   GREAT   BRITAIN. 

tion  of  justice,  was  limited  to  one  year.  The  pulling  down  of 
the  old  system  was  complete;  fresh  construction  had  already 
become  necessary. 

Justices  of  the  Peace.  —  The  reconstruction  was  effected 
through  the  appointment  of  '  Justices  of  the  Peace. '  The  expe- 
dient of  ' custodians  of  pleas  of  the  Crown '  (custodes  placitorum 
coronce)  elected  in  County  Court,  as  substitutes  for  the  Sheriff  in 
the  exercise  of  sundry  important  functions  of  local  justice,  had 
proved  unsatisfactory.  They,  too,  like  the  Sheriffs,  were  curtly 
forbidden  by  Magna  Charta  to  hold  any  pleas  of  the  Crown ;  and 
they  speedily  became  only  the  coroners  we  know  ('crowners ' 
Shakspere's  grave-digger  in  Hamlet  very  appropriately  calls 
them),  whose  chief  function  it  is  to  conduct  the  preliminary  in- 
vestigation concerning  every  case  of  sudden  death  from  an  un- 
known cause.  Better  success  attended  the  experiment  of  Justices 
of  the  Peace.  At  first  'Conservators '  of  the  peace  merely,  these 
officers  became,  by  a  statute  passed  in  1360,  in  the  reign  of  Ed- 
ward III.,  justices  also,  intrusted  with  a  certain  jurisdiction  over 
criminal  cases,  to  the  supplanting  of  the  Sheriff  in  the  last  of  his 
judicial  functions,  his  right,  namely,  to  pass  judgment  in  his 
tourn  or  petty  court  on  police  cases,  —  to  apply  the  discipline  of 
enforced  order  to  small  offences  against  the  public  peace. 

Henceforth,  as  it  turned  out,  the  process  of  providing 
ways  of  local  government  was  simple  enough,  as  legislators  chose 
to  conduct  it.  It  consisted  simply  in  charging  the  Justices  of 
the  Peace  with  the  doing  of  everything  that  was  necessary  to  be 
done.  Slowly,  piece  by  piece,  their  duties  and  prerogatives  were 
added  to,  till  the  Justices  had  become  immeasurably  the  most 
important  functionaries  of  local  government,  combining  in  their 
comprehensive  official  characters  almost  every  judicial  and  ad- 
ministrative power  not  exercised  from  London.  Not  till  the 
passage  of  the  Local  Government  Act  of  1888  were  they  relegated 
to  their  older  and  more  characteristic  judicial  functions,  and  their 
administrative  and  financial  powers  transferred  to  another  body, 
the  newly  created  County  Council. 

Functions  of  Justices  of  the  Peace  prior  to  Recent  Reforms. 

—  The  Justice  of  the  Peace  has  been  very  happily  described  as  having 
been  under  the  old  system  "  the  state's  man  of  all  work."     His  multifari- 


THE   GOVERNMENT   OF    GREAT   BRITAIN.  227 

ous  duties  brought  him  into  the  service  (a)  of  the  Privy  Council,  under 
whose  Veterinary  Department  he  participated  in  the  administration  of 
the  Acts  relating  to  contagious  cattle  diseases  ;  (6)  of  the  Home  Office, 
under  which  he  acted  in  governing  the  county  constabulary,  in  conduct- 
ing the  administration  of  lunatic  asylums,  and  in  visiting  prisons  ;  (c)  of 
the  Board  of  Trade,  under  whose  general  supervision  he  provided  and 
tested  weights  and  measures,  constructed  and  repaired  bridges,  and  over- 
saw highway  authorities ;  and  (d)  of  the  Local  Government  Board,  under 
whose  superintendence  he  appointed  parish  overseers  of  the  poor,  exer- 
cised, on  appeal,  a  revisory  power  over  the  poor-rates,  and  took  a  certain 
part  in  sanitary  regulation.  The  Justices,  besides,  formerly  levied  the 
county  tax,  or  'rate,'  out  of  which  the  expenses  of  county  business  were 
defrayed ;  issued  licenses  for  the  sale  of  intoxicating  drinks  (as  they  still 
do),  fjor  the  storage  of  gunpowder  and  petroleum,  and  for  other  under- 
takings required  by  law  to  be  licensed  ;  divided  the  counties  into  highway, 
polling,  and  coroner's  districts ;  issued  orders  for  the  removal  of  paupers 
to  their  legal  places  of  settlement ;  fulfilled  a  thousand  and  one  adminis- 
trative functions  too  various  to  classify,  too  subordinate  to  need  enumera- 
tion, now  that  most  of  them  have  been  transferred  to  the  Councils.  The 
trial  of  criminal  cases,  together  with  the  performance  of  the  various  func- 
tions attendant  upon  such  a  jurisdiction,  always  constituted,  of  course, 
one  of  the  weightiest  duties  of  their  office,  and  is  now  its  chief  and  almost 
only  duty. 

"Long  ago,"  laughs  Mr.  Maitland,  speaking  before  the  passage 
of  the  Act  of  1888,  "  long  ago  lawyers  abandoned  all  hope  of  describing 
the  duties  of  a  justice  in  any  methodic  fashion,  and  the  alphabet  has 
become  the  only  possible  connecting  thread.  A  Justice  must  have  some- 
thing to  do  with  'Railroads,  Rape,  Rates,  Recognizances,  Records,  and 
Recreation  Grounds ' ;  with  '  Perjury,  Petroleum,  Piracy,  and  Play- 
houses';  with  'Disorderly  Houses,  Dissenters,  Dogs,  and  Drainage.'"1 

Character  and  Repute  of  the  Office  of  Justice.  —  The  office 
of  Justice  of  the  Peace  is  representative  in  the  same  sense,  — not  an  un- 
important sense,  —  in  which  the  unreformed  parliaments  of  the  early  part 
of  the  century  were  representative  at  any  rate  of  the  county  populations. 
The  Justices  are  appointed  from  among  the  more  considerable  gentry  of 
the  counties,  and  represent  in  a  very  substantial  way  the  permanent 
interests  of  the  predominantly  rural  communities  over  whose  justice  they 
preside.  An  interesting  proof  of  their  virtually  representative  character 
appears  in  the  popularity  of  their  office  during  the  greater  part  of  its 
history.  Amidst  all  the  extensions  of  the  franchise,  all  the  remaking  of 
representative  institutions  which  this  century  has  witnessed  in  England, 
the  Justiceship  of  the  Peace  remained  all  the  while  practically  untouched, 
because  on  all  hands  greatly  respected,  until  the  evident  need  to  introduce 

1  Justice  and  Police,  p.  84. 


228  THE   GOVERNMENT   OF    GREAT   BRITAIN. 

system  into  local  government,  and  the  apparent  desirability  of  systematic 
ing  it  in  accordance  with  the  whole  policy  of  recent  reforms  in  England 
by  extending  the  principle  of  popular  representation  by  election  to  county 
government,  as  it  had  been  already  extended  to  administration  in  the 
lesser  areas,  led  to  the  substitution  of  County  Councils  for  the  Justices 
as  the  county  authority  in  financial  and  administrative  affairs. 

The  Lord  Lieutenant. —  In  the  reign  of  Mary  a  'Lord 
Lieutenant '  took  the  place  of  the  Sheriff  in  the  County  as  head 
of  the  militia,  becoming  the  chief  representative  of  the  Crown  in 
the  County,  and  subsequently  the  keeper  of  the  county  records 
(Custos  JRotulorum).  The  Sheriff,  since  the  completion  of  this 
change,  has  been  a  merely  administrative  officer,  executing  the 
judgments  of  the  courts,  and  presiding  over  parliamentary  elec- 
tions. The  command  of  the  militia  remained  with  the  Lords 
Lieutenant  until  1871,  when  it  was  vested  in  the  Crown,  — 
that  is  assumed  by  the  central  administration.  (Compare  pages 
220-221.) 

The  Reform  of  1888.  —  The  reform  of  local  administration 
proposed  by  the  ministry  of  Lord  Salisbury,  in  the  spring  of  1888, 
although  not  venturing  so  far  as  it  would  be  necessary  to  go  to 
introduce  order  and  symmetry  into  a  patch-work  system,  sug- 
gested some  decided  steps  in  the  direction  of  simplification  and 
coordination.  The  confusions  of  the  existing  arrangements  were 
many  and  most  serious.  England  was  divided  into  counties, 
boroughs,  urban  sanitary  districts,  rural  sanitary  districts,  poor- 
law  parishes,  poor-law  unions,  highway  parishes,  and  school  dis- 
tricts; and  these  areas  had  been  superimposed  upon  one  another 
with  an  astonishing  disregard  of  consistent  system,  —  without 
either  geographical  or  administrative  coordination.  The  confu- 
sions to  be  remedied,  therefore,  consisted  (a)  of  the  overlapping 
of  the  various  areas  of  local  government,  the  smaller  areas  not 
being  in  all  cases  subdivisions  of  the  larger,  but  defined  almost 
wholly  without  regard  to  the  boundaries  of  any  other  areas;  (6) 
of  a  consequent  lack  of  coordination  and  subordination  among 
local  authorities,  fruitful  of  the  waste  of  money  and  the  loss  of 
efficiency  always  resulting  from  confusions  and  duplications  of 
organization;  (c)  of  varieties  of  time,  method,  and  franchise  in 
the  choice  of  local  officials;  and  (d)  of  an  infinite  complexity 


THE   G0\  KKNMKNT    OF    GREAT   BRITAIN.  229 

in  the  arrangements  regarding  local  taxation,  the  sums  needed 
for  the  various  purposes  of  local  government  (for  the  poor,  for 
example,  for  the  repair  of  highways,  for  county  outlays,  etc.) 
being  separately  assessed  and  separately  collected,  at  great  ex- 
pense and  at  the  cost  of  a  great  deal  of  vexation  to  the  tax- 
payer. 

The  ministry  at  first  proposed  to  remedy  this  confusion, 
at  least  in  part,  by  largely  centering  administration,  outside  the 
greater  towns,  in  two  areas,  the  County  and  the  District.  The 
system  of  poor-relief,  through  parishes  and  unions,  was  to  be  left 
untouched,  but  a  beginning  was  to  be  made  in  unification  by 
making  the  Counties  and  Districts  the  controlling  organs  of  local 
government;  provision  was  to  be  made  for  extensive  readjust- 
ments of  boundaries  so  that  the  smaller  rural  areas  might  be 
brought  into  proper  relation  and  subordination  to  the  larger  by 
making  them  in  all  cases  at  least  subdivisions  of  counties ;  both 
County  and  District  were  to  have  representative  councils  pre- 
sumably fitted  ultimately  to  assume  the  whole  taxing  function; 
and  the  franchise  by  which  these  bodies  were  to  be  elected  was 
to  be  assimilated  to  the  simplest  and  broadest  used  in  local  and 
parliamentary  elections. 

Only  a  portion  of  this  reform,  however,  it  turned  out, 
could  be  got  through  Parliament.  The  provisions  relating  to  the 
formation  of  Districts  were  left  out,  and  only  the  county  was 
reorganized.  The  larger  boroughs  were  given  county  privileges; 
the  smaller  were  brought  into  new  and  closer  relations  with  the 
reconstructed  county  governments.  London,  too,  was  given  a 
county  organization.  The  integration  of  the  smaller  areas  of 
rural  administration  with  the  new  county  system  was  not  accom- 
plished till  1894. 

Administrative  Counties  and  County  Boroughs.  —  The  Act, 
as  passed,  coordinated  Counties  with  what  were  thenceforth  to 
be  called  'county  boroughs.'  Every  borough  of  not  less  than 
fifty  thousand  inhabitants  at  the  time  the  Act  was  passed,  or 
which  was,  before  the  passage  of  the  Act,  treated  as  a  county  (in  all, 
sixty-one  boroughs),  was  constituted  a  'county  borough,'  and  was 
formally  put  alongside  the  county  in  rank  and  privileges.  This 
did  not  mean  that  these  boroughs  were  to  be  given  a  county  or- 


230  THE   GOVERNMENT   OF   GREAT   BRITAE*. 

ganization.  Paradoxically  enough,  it  meant  just  the  opposite, 
that  the  counties  were  to  be  given  an  organization  closely  resem- 
bling •  that  already  possessed  by  the  boroughs.  The  nomen- 
clature of  the  Act  would  be  more  correct,  though  possibly  less 
convenient,  had  it  called  the  counties  'borough  counties '  instead 
of  calling  some  of  the  boroughs  'county  boroughs.'  The  measure 
has  been  very  appropriately  described  as  an  Act  to  apply  the 
Municipal  Corporations  Act  of  1882,  whose  main  provisions  date 
back  as  far  as  1835  (page  240),  to  county  government,  with  cer- 
tain relatively  unimportant  modifications. 

The  counties  designated  by  the  Act  are  dubbed  '  administrative 
counties,'  because  they  are  not  in  all  cases  the  historical  counties  of  the 
map.  In  several  instances  counties  are  separated  into  parts  for  the  pur- 
poses of  the  reorganization.  Thus  the  East  Riding  of  Yorkshire  consti- 
tutes one  'administrative  county,'  the  North  Riding  another,  and  the 
West  Riding  a  third  ;  Suffolk  and  Sussex  also  have  each  an  East  and 
West  division  ;  Lincoln  falls  apart  into  three  administrative  counties,  etc. 
All  boroughs  of  less  than  50,000  inhabitants  not  treated  as  counties  are  more 
or  less  incorporated  with  the  counties  in  which  they  lie.  (See  page  242.) 

The  County  Councils:  their  Constitution. — In  pursuance 
of  the  purpose  of  assimilating  county  to  borough  organization, 
the  counties  are  given  representative  governing  assemblies  com- 
posed of  councillors  and  aldermen,  presided  over  by  a  chairman 
whose  position  and  functions  reproduce  those  of  the  borough 
mayors,  and  possessing  as  their  outfit  of  powers  almost  all  the 
miscellany  of  administrative  functions  hitherto  belonging  to  the 
Justices  of  the  Peace.  There  is  not,  it  should  be  observed,  a 
Council  and  a  Board  of  Aldermen,  as  in  American  cities,  but  a 
single  body  known  as  the  Council  and  composed  of  two  classes  of 
members,  the  one  class  known  as  Aldermen,  the  other  as  Coun- 
cillors. These  two  classes  differ  from  each  other,  not  in  power 
or  in  function,  but  only  in  number,  term,  and  mode  of  election. 
The  Councillors  are  directly  elected  by  the  qualified  voters  of  the 
County  and  hold  office  for  a  term  of  three  years;  the  Aldermen 
are  one-third  as  many  as  the  Councillors  in  number,  are  elected 
by  the  Councillors,  either  from  their  own  number  or  from  the 
qualified  voters  outside,  and  hold  office  for  six  years,  one-half  of 
their  number,  however,  retiring  every  three  years,  in  rotation. 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  231 

This  single-chambered  Council  of  Aldermen  and  Councillors  elects 
its  own  chairman,  to  serve  for  one  year,  and  pays  him  such  com- 
pensation as  it  deems  sufficient.  During  his  year  of  service  the 
chairman  exercises  the  usual  presidential,  but  no  independent 
executive,  powers,  and  is  authorized  to  act  as  a  Justice  of  the 
Peace,  along  with  the  rest  of  the  '  Commission '  of  the  County. 

Any  one  may  be  elected  a  councillor  who  is  entitled  to  vote  in  parlia- 
mentary elections  and  is  the  owner  of  property  held  by  freehold,  copyhold, 
leasehold  or  other  tenure  within  the  area ;  and  in  the  counties,  though 
not  in  the  boroughs,  peers  owning  property  in  the  county  and  "clerks  in 
holy  orders  and  other  ministers  of  religion  "  may  be  chosen  to  the  Council. 
The  number  of  councillors  and  the  number  of  aldermen  in  each 
County  Council  (for  the  latter  number  is  always  one-third  of  the  former) 
was  fixed  in  the  first  instance  by  an  order  of  the  Local  Government  Board, 
and  is  in  some  cases  very  large.  Thus  Lancashire  has  a  Council  (alder- 
men, of  course,  included)  of  140  members,  the  West  Riding  of  Yorkshire 
a  council  of  120,  Devon  a  council  of  104.  Rutland,  whose  Council  is  the 
smallest,  has  28.  The  average  is  probably  about  75.  For  the  election  of 
councillors  the  county,  including  such  boroughs  as  are  not  '  county  bor- 
oughs,' is  divided  into  electoral  districts,  one  councillor  being  chosen  from 
each  district.  The  number  of  these  districts  having  been  determined  by 
the  order  of  the  Local  Government  Board,  their  area  and  disposition  were 
fixed  in  the  first  instance  by  Quarter  Sessions,  or,  within  the  non-county 
boroughs  needing  division,  by  the  borough  Council,  due  regard  being  had 
to  relative  population  and  to  a  fair  division  of  representation  between  rural 
and  urban  populations.  The  number  of  councillors  and  the  boundaries 
of  electoral  districts  may  be  changed  by  order  of  the  Local  Government 
Board  upon  the  recommendation  of  the  Council  of  a  borough  or  county. 

Local  Government  Franchise.  —  In  England,  Wales,  and 
Ireland  the  franchise  for  all  local  government  areas  has,  by  the 
Representation  of  the  People  Act  of  1918,  been  extended  to  all  men 
and  women  of  full  age  not  subject  to  any  legal  incapacity  who  are 
jointly  or  severally  occupiers  as  owners  or  tenants  of  any  land  or 
premises  in  a  local  government  area,  if  they  have  so  occupied  for 
six  months  ending  either  on  the  15th  of  January  or  the  15th  of 
July.  Tenant  includes  lodgers  in  unfurnished  quarters.  In 
Scotland  the  local  government  franchise  is  enjoyed  by  men  and 
women  of  full  age  who  are  owners  or  occupiers  of  lands  and 
heritages  of  £10  yearly  value  ;  or  inhabitant  occupiers  of  dwelling 


232  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

houses  ;  or  occupiers  of  unfurnished  lodgings  of  the  yearly  value 
of  £10  ;  or  service  occupiers.  Everywhere  in  the  United  King- 
dom the  wife  of  a  qualified  local  government  elector  enjoys  the 
franchise  if  she  is  thirty  years  old. 

Powers  of  the  County  Councils.  —  The  Council  of  each 
County  is  a  body  corporate  and  as  such  may  have  a  common  seal, 
hold  property,  make  by-laws,  etc.  Its  by-laws,  however,  unless 
they  concern  nuisances,  are  subject  to  approval  by  the  Secretary 
of  State  [the  Home  Secretary],  and  may  be  annulled  by  an  order 
in  Council. 

(1)  The  Council  holds  and  administers  all  county  property,  and 
may  purchase  or  lease  lands  or  buildings  for  county  uses ; 

(2)  With  it  rests  the  duty  of  maintaining,  managing,  and,  when 
necessary,  enlarging,  the  pauper  lunatic  asylums  of  the  county, 
and  of  establishing  and  maintaining,  or  contributing  to,  reforma- 
tory and  industrial  schools  ;  by  the  Education  Act  of  1902  it  was 
given  extensive  authority  over  education. 

(3)  It  is  charged  with  maintaining  county  bridges,  and  all  main 
roads  in  every  part  not  specially  reserved  by  urban  authorities  for 
their  own  management   because  lying  within  their  own  limits ; 
and  it  may  declare  any  road  a  main  road  which  seems  to  serve  as 
such,  and  which  has  been  put  in  thorough  repair,  before  being 
accepted  by  the  county,  by  the  local  highway  authorities ; 

(4)  It  administers  the  statutes  affecting  the  contagious  diseases 
of  animals,  destructive   insects,  fish  preservation,  weights   and 
measures,  etc.; 

(5)  It  appoints,  pays,  and  may  remove  the  county  Treasurer, 
the  county  coroner,  the  public  surveyor,  the  county  analyst,  and 
all  other  officers  paid  out  of  the  county  rates,  —  except  the  clerk 
of  the  Peace  and  the  clerks  of  the  Justices,  —  including  the  medi- 
cal health  officers,  though  these  latter  functionaries  report,  not  to 
the  Council  (the  Council  receives  only  a  copy  of  their  report),  but 
to  the  Local  Government  Board,  and  the  only  power  of  the  Council 
in  the  premises  is  to  address  to  the  Board,  independently  and  of 
their  own  motion,  representations  as  to  the  enforcement  of  the 
Public  Health  Acts  where  such  representations  seem  necessary ; 

(6)  It   determines  the  fees  of  the  coroner  and   controls   the 
division  of  the  county  into  coroners'  districts; 


THE    GOVKUN.MKNT    OF    GREAT   BRITAIN.  £33 

(7)  It  divides  the  county  into  polling  districts  also  for  parlia- 
mentary elections,  appoints   voting   places,   and   supervises   the 
registration  of  voters ; 

(8)  It  sees  to  the  registering  of  places  of  worship,  of  the  rules 
of  scientific  societies,  of  charitable  gifts,  etc. 

It  is  obviously  impossible  to  classify  or  make  any  generalized 
statement  of  this  miscellany  of  powers :  they  must  be  enumerated  or  not 
stated  at  all.  They  are  for  the  most  part,  though  not  altogether,  the 
administrative  powers  formerly  intrusted  to  the  Justices  of  the  Peace. 

The  Licensing  Function,  being  semi-judicial,  is  left  in  most 
cases  with  the  Justices  of  the  Peace ;  but  the  County  Council  is 
assigned  the  granting  of  licenses  to  music  and  dancing  halls,  to 
houses  which  are  to  be  devoted  to  the  public  performance  of  stage 
plays,  and  for  the  keeping  of  explosives. 

Oddly  enough,  the  County  Council  is,  by  another  section  of  the 
Act  of  1888,  authorized  to  delegate  its  powers  of  licensing  in  the  case  of 
playhouses  and  in  the  case  of  explosives  back  to  the  Justices  again,  acting 
in  petty  sessions.  The  same  section  also  permits  a  similar  delegation  to  the 
Justices  of  the  powers  exercised  by  the  Council  under  the  Act  touching 
contagious  cattle  diseases. 

The  Financial  Powers  of  the  Council  are  extensive  and 
important.  The  Council  takes  the  place  of  the  Justices  in  deter- 
mining, assessing,  and  levying  the  county,  police,  and  hundred 
rates,  in  disbursing  the  funds  so  raised,  and  in  preparing  or  revis- 
ing the  basis  or  standard  for  the  county  rates ;  though  in  this  last 
matter  it  acts  subject  to  appeal  to  Quarter  Sessions.  It  may 
borrow  money,  "on  the  security  of  the  county  fund,"  for  the 
purpose  of  consolidating  the  county  debt,  purchasing  property  for 
the  county,  or  undertaking  permanent  public  works,  provided  it 
first  obtain  the  consent  of  the  Local  Government  Board  to  the 
raising  of  the  loan.  That  Board  gives  or  withholds  its  consent 
only  after  a  local  inquiry,  and,  in  case  it  assents,  fixes  the  period 
within  which  the  loan  must  be  repaid,  being  itself  limited  in  this 
last  particular  by  a  provision  of  law  that  the  period  must  never 
exceed  thirty  years. 

If  the  debt  of  the  county  already  exceed  ten  per  cent,  of  the 
annual  ratable  value  of  the  ratable  property  of  the  county,  or  if  the  pro- 
posed loan  would  raise  it  above  that  amount,  a  loan  can  be  sanctioned 


234  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

only  by  a  provisional  order  of  the  Board,  —  an  order,  that  is,  which 
becomes  valid  only  upon  receiving  the  formal  sanction  of  Parliament  also, 
given  by  public  Act.  A  county  may  issue  stock,  under  certain  limita- 
tions, if  the  consent  of  the  Local  Government  Board  be  obtained. 

Additional  Powers.  —  The  Act  of  1888  provides  that  any  other 
powers  which  have  been  conferred  upon  the  authorities  of  particular  locali- 
ties by  special  Act,  and  which  are  similar  in  character  to  those  already 
vested  in  the  County  Councils,  may  be  transferred  to  the  proper  County 
Councils  by  provisional  order  of  the  Local  Government  Board  ;  and  also 
that  a  similar  provisional  order  of  that  Board  may  confer  upon  a  County 
Council  any  powers,  arising  within  the  County,  which  are  now  exercised 
by  the  Privy  Council,  a  Secretary  of  State,  the  Board  of  Trade,  the  Local 
Government  Board  itself,  or  any  other  government  department,  provided 
they  be  powers  conferred  by  statute  and  the  consent  of  the  department 
concerned  be  first  secured. 

The  County  Budget.  —  At  the  beginning  of  every  local 
financial  year  (April  1st)  an  estimate  of  the  receipts  and  expendi- 
tures of  the  year  is  submitted  to  the  Council,  and  upon  the  basis 
of  this,  the  Council  makes  estimate  of  the  sums  to  be  needed, 
and  fixes  the  rates  accordingly.  The  Council's  estimate  is  made 
for  two  six-month  periods,  and  is  subject  to  revision  for  the 
second  six-month  period,  provided  the  experience  of  the  first 
prove  it  necessary  either  to  increase  or  decrease  the  amounts  to 
be  raised. 

Returns  of  the  actual  receipts  and  expenditures  of  each 
financial  year  are  also  made  to  the  Local  Government  Board,  in 
such  form  and  with  such  particulars  as  the  Board  directs ;  and 
full  abstracts  of  these  returns  are  annually  laid  before  both 
Houses  of  Parliament.  The  county  accounts  are,  moreover, 
periodically  audited  by  district  auditors  appointed  by  the  Local 
Government  Board.  The  accounts  of  the  county  Treasurer  are 
audited  by  the  Council. 

Local  rates  are  assessed  exclusively  upon  real  estate,  and, 
until  the  passage  of  the  Local  Government  Act  of  1888,  it  was 
the  habit  of  Parliament  to  make  annual  '  grants  in  aid  of  the 
rates'  from  the  national  purse,  with  the  idea  of  paying  out  of 
moneys  raised  largely  upon  personal  property  some  part  of  the 
expense  of  local  administration.  The  Act  of  1888  substitutes 
another  arrangement.  It  provides  that  all  moneys  collected  from 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  235 

certain  licenses  (a  long  list  of  them,  from  liquor  licenses  to  licenses 
for  male  servants  and  guns),  together  with  four-fifths  of  one-half 
of  the  proceeds  of  the  probate  duty,  shall  be  distributed  among 
the  counties  from  the  imperial  treasury,  under  the  direction  of 
the  Local  Government  Board,  for  the  purpose  of  defraying  cer- 
tain specified,  county  expenses,  notably  for  the  education  of  pau- 
pers and  the  support  of  pauper  lunatics. 

The  Police  Powers,  long  exercised  by  the  Justices  of  the 
Peace,  are  now  exercised  by  a  joint  committee  of  Quarter  Ses- 
sions and  the  County  Council.  This  committee  is  made  up,  in 
equal  parts,  of  Justices  and  members  of  the  Council;  elects  its 
own  chairman,  if  necessary  (because  of  a  tie  vote)  by  lot;  and 
acts,  when  appointed,  not  as  exercising  delegated  authority,  but 
as  an  independent  body.  The  term  of  the  committeemen  is,  how- 
ever, determined  by  the  bodies  which  choose  them. 

The  Parish. — Parishes  there  have  been  in  England  ever 
since  the  Christian  church  was  established  there ;  but  the  Parish 
which  now  figures  in  English  local  government  inherits  nothing 
but  its  name  intact  from  those  first  years  of  the  national  history. 
The  church,  in  its  first  work  of  organization,  used  the  smallest 
units  of  the  state  for  the  smallest  divisions  of  its  own  system : 
it  made  the  township  its  parish;  and  presently  the  priest  was 
always  to  be  seen  going  up  with  the  reeve  and  the  four  men  of  the 
township  to  the  hundred  and  the  county  courts.  Only  where  the 
population  was  most  numerous  did  it  prove  necessary  to  make 
the  parish  smaller  than  the  township;  only  where  it  was  least 
numerous  did  it  seem  expedient  to  make  the  parish  larger  than 
the  township.  Generally  the  two  were  geographically  coin- 
cident. During  much  the  greater  part  of  English  history,  too, 
citizenship  and  church  membership  were  inseparable.  The 
vestry,  therefore,  which  was  the  assembly  of  church-mem- 
bers which  elected  the  church-wardens  and  regulated  the 
temporalities  of  the  local  church,  was  exactly  the  same  body 
of  persons  that,  when  not  acting  upon  church  affairs,  consti- 
tuted the  township  meeting.  It  was  the  village  moot  'in  its 
ecclesiastical  aspect.'  And  when  the  township  privileges  were, 
by  feudalization,  swallowed  up  in  the  manorial  rights  of  the 
baronage,  the  vestry  was  all  that  remained  of  the  old  organiza- 


236  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

tion  of  self-government;  for  the  court,  or  civil  assembly,  of  the 
township  was  superseded  by  the  baron's  manorial  court.  But 
the  church  was  not  absorbed ;  the  vestry  remained,  and  whatever 
scraps  of  civil  function  escaped  the  too  inclusive  sweep  of  the 
grants  of  jurisdiction  to  the  barons  the  people  were  fain  to  enjoy 
as  vestrymen. 

The  Poor-law  Parish.  —  It  was  in  this  way  that  it  fell 
out  that  the  township,  when  acting  in  matters  strictly  non- 
ecclesiastical,  came  to  call  itself  the  parish,  and  that  it  became 
necessary  to  distinguish  the  'civil  parish '  from  the  'ecclesiasti- 
cal parish. '  The  vestry  came  at  last  to  elect,  not  church-wardens 
only,  but  way-wardens  also,  and  assessors ;  and  in  the  sixteenth 
century  (1535,  reign  of  Henry  VIII.)  the  church-wardens  were 
charged  with  the  relief  of  the  poor.  We  are  thus  brought  within 
easy  sight  of  the  parish  of  to-day.  The  legislation  of  the  present 
century,  which  has  been  busy  about  so  many  things,  has  not 
failed  to  readjust  the  parish  and  in  most  cases,  as  altered  by 
statute  to  suit  the  conveniences  of  political  administration,  "  the 
modern  civil  parish  coincides  neither  with  the  ancient  civil  par- 
ish, nor  with  the  ecclesiastical  parish  " ;  but  old  parochial  asso- 
ciations still  survive,  and  many  of  the  ancient  parochial  duties 
connected  with  the  support  of  the  poor.  Until  1894  the  parochial 
authority  was  still  the  ancient  vestry,  reduced  almost  to  a  mini- 
mum of  powers,  indeed,  but  not  yet  taken  from  its  seat  of  con- 
trol. In  1894  Parliament  completed  the  reorganization  of  local 
government  begun  in  1888 :  vestries  were  relegated,  at  any  rate 
in  all  rural  districts,  to  the  exercise  of  ecclesiastical  functions 
alone;  and  the  parishes,  with  a  new  democratic  organization, 
became  once  more  the  vital  units  of  local  self-government. 

The  Reform  of  1894.  —  All  the  legislation  attempted  in 
England  during  the  present  century  with  regard  to  local  govern- 
ment, whether  its  object  was  first  construction  or  reform,  has 
carefully  observed  the  difference  between  'rural*  and  'urban' 
areas;  and  the  law  of  1894  is  no  exception  to  the  rule;  The 
parishes  which  lie  within  the  limits  of  boroughs  or  within  the 
limits  of  those  more  thickly  settled  areas  which,  though  without 
borough  organization,  are  yet  distinguished  by  the  law  as  'urban  ' 
in  their  means  of  local  government  (page  239),  are  not  directly 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  237 

affected  by  the  Act.  But  the  organization  and  action  of  the  rural 
parishes  are  revolutionized.  They  are  made  self-governing  com- 
munes, with  a  very  notable  list  of  powers  and  privileges. 

Every  rural  parish,  great  or  small,  has  now  its  primary 
assembly,  its  parish  meeting,  of  which  every  person  of  legal  age 
in  the  parish,  man  or  woman,  is  a  member  who  is  a  qualified  local 
government  elector.  In  parishes  which  have  less  than  three 
hundred  inhabitants  the  parish  meeting  is  the  actual  governing 
body,  unless  the  County  Council  sees  fit,  with  the  consent  of  the 
parish  electors,  to  set  up  a  parish  council ;  but  in  parishes  which 
have  a  population  of  more  than  three  hundred  a  parish  council  of 
from  five  to  fifteen  members,  —  the  County  Council  determines 
the  number  in  each  case,  —  is  given  charge  of  affairs,  and  the 
parish  meeting  exercises  only  the  functions  of  electing  councillors, 
consenting  to  the  larger  sorts  of  loans,  and  voting  upon  the  adop- 
tion and  operation  of  certain  statutes,  known  as  the  '  adoptive 
acts,'  which  Parliament  has  left  it  to  them  to  adopt  and  act  upon 
or  not  as  they  please.  These  are  the  statutes  with  regard  to 
street  lighting  and  watching,  the  establishment  of  baths  and 
wash-houses,  the  undertaking  of  certain  public  improvements, 
the  foundation  of  public  libraries,  and  like  matters.  Women, 
whether  married  or  single,  are  eligible  for  election  to  the  parish 
councils,  and  even  to  the  chairmanship  of  those  bodies."  The  term 
of  a,  parish  council  is  three  years. 

Parishes  which  are  governed  by  a  parish  meeting  only,  without  a 
council,  usually  appoint  one  or  more  executive  committees  for  the  actual 
work  of  administration  ;  and,  if  they  accept  the  '  adoptive '  acts  men- 
tioned in  the  last  paragraph,  they  elect  commissioners  to  carry  them  into 
execution ;  but  in  very  many  cases  the  County  Councils  have  given  these 
small  parishes  councils,  and  where  there  are  councils  they  are  the  execu- 
tive agents  of  the  parish  in  practically  every  sort  of  business. 

The  chairman  of  a  parish  council  is  ex  officio  a  Justice  of  the  Peace 
for  the  county  in  which  he  resides  ;  and  this  feature  of  the  law  has,  ID 
view  of  the  very  large  number  of  parishes  in  every  county,  radically 
changed  the  character  of  the  commission  of  the  peace.  Any  one  maj 
be  a  parish  councillor,  and  any  one  may  be  a  chairman  of  a  pari$J\ 


238  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

council  who  can  be  a  member  of  a  parish  meeting  (page  237),  and  a  seat 
on  the  county  bench  of  Justices  is  consequently  no  longer  by  any  means 
the  exclusive  possession  of  country  gentlemen. 

The  parish  councillors  are  elected  in  parish  meeting,  by  a  mere 
show  of  hands,  —  unless  a  formal  poll  be  demanded.  No  elector,  what- 
ever his  property  or  interest,  can  cast  more  than  one  vote  in  any  one 
parish ;  but  those  who  have  the  requisite  property  qualification  in  more 
than  one  parish  can  be  registered,  and  can  vote  in  every  parish  in  which 
they  can  prove  the  possession  of  the  requisite  amount  of  property.  Mar- 
ried women  cannot  qualify,  however,  upon  the  same  property  upon  which 
their  husbands  have  qualified. 

Parochial  Powers.  —  The  parish  councils  (or  the  parish 
meetings,  as  the  case  may  be)  exercise  a  miscellany  of  powers 
variously  distributed,  until  1894,  amongst  vestries,  church-war- 
dens, overseers  of  the  poor,  and  commissioners  of  various  sorts 
and  functions.  A  parish  council  is  a  body  corporate,  and  as 
such  owns  and  manages  the  property  of  the  parish.  It  may  ac- 
quire property  by  gift  or  purchase,  —  not  merely  for  the  erection 
of  parochial  buildings  and  other  directly  parochial  uses,  but  also 
for  the  establishment  and  maintenance  of  recreation  grounds,  and 
for  the  purpose  of  making  allotments  at  a  fixed  rental  to  such 
residents  of  the  parish  as  may  wish  to  acquire  holdings.  It  has 
control  of  the  water  supply  of  the  parish,  and  is  the  local  sani- 
tary authority;  it  can  acquire,  maintain,  or  change  public  rights 
of  way;  it  maintains  the  highways  and  the  enclosed  burial 
grounds  of  the  parish ;  and  it  provides  for  the  prevention  and  ex- 
tinguishment of  fires.  It  fixes  the  local  assessment  and  tax  rate, 
on  appeal ;  prepares  the  parish  register ;  and  appoints  the  over- 
seers and  assistant  overseers  of  the. poor,  who  assess  the  poor  rates 
and  make  out  the  jury  lists  and  the  lists  of  parliamentary  and 
county  voters.  The  right  to  appoint  the  overseers  was  taken 
over  from  the  Justices  of  the  Peace. 

Supervision.  — The  County  Councils  are  given  supervisory  charge 
of  the  new  system  of  parish  government.  They  group  or  divide  the  par- 
ishes for  action  under  the  law,  in  their  discretion  ;  they  may  create  or  dis- 
solve parish  councils  in  the  smaller  parishes  ;  they  determine  the  number 
of  members  in  e&chparish  council;  supervise  the  action  of  the  parish  coun- 
cils in  the  matter  of  loans  and  land  allotments ;  regulate  in  some  degree 
the  custody  and  preservation  of  the  parish  books  and  documents  ;  and  in 
many  other  ways  stand  superintendent  over  their  exercise  of  powers. 


THE   GOVERNMENT   OF   GREAT  BSITAIN.  239 

Urban  parishes  are  for  the  most  part  unaffected  by  the  Act  of 
1894,  and  still  act  in  civil  as  well  as  in  church  matters  through  their  ves- 
tries, as*  of  old. 

The  Rural  District.  —  Before  1894  the  rural  parishes 
were  grouped  in  poor-law  Unions,  governed,  in  sundry  other 
matters  as  well  as  in  the  care  of  the  poor,  by  a  Board  of  Guar- 
dians. Various  Highway  Boards,  too,  Burial  Boards,  Bath  Com- 
missioners, Library  Commissioners,  and  Public  Improvement 
Boards,  acted  for  the  parishes  singly  or  in  groups  in  the  several 
special  matters  committed  to  their  direction.  The  Act  of  1894 
substituted  '  Rural  Districts '  for  the  Unions,  gave  to  each  Dis- 
trict an  administrative  Council,  and  united  in  the  hands  of  that 
Council  the  various  local  functions  hitherto  dispersed  and  sepa- 
rated. The  District  Council  is  elected  for  a  term  of  three  years 
(as  the  Board  of  Guardians  was),  and  is  charged  with  the  general 
oversight  and  conduct  of  all  business  affecting  the  common  inter- 
ests of  the  parishes  embraced  within  this  District  in  matters  of 
local  government.  It  takes  the  place  of  the  old  Board  of  Guar- 
dians in  the  administration  of  the  poor  law,  and  is  the  general 
highway,  sanitary,  and  administrative  body  of  the  District.  Its 
members  are  elected  by  the  parishes  in  parish  meeting,  and  any 
one  may  be  chosen  who  is  a  parochial  elector  in  one  of  the  par- 
ishes of  the  District,  or  who  has  resided  in  the  District  for  a 
twelvemonth  preceding  the  election.  The  chairman  of  a  District 
Council,  like  the  chairman  of  a  parish  council,  is  ex  officio  a  Jus- 
tice of  the  Peace  for  the  county. 

The  Urban  District.  —  The  urban  parishes,  outside  incor- 
porated boroughs,  are  also  grouped  into  Districts,  each  with  its 
administrative  Council,  and  to  these  Councils  are  assigned  much 
the  same  powers  as  those  which  are  exercised  by  the  Councils  of 
the  rural  Districts,  except  that  they  do  not  constitute  the  poor- 
law  authority  of  the  District.  That  is  still,  in  the  urban  Dis- 
tricts, a  distinct  and  separate  Board  of  Guardians,  selected  for  the 
purpose.  The  Local  Government  Board  may,  in  its  discretion, 
confer  upon  Urban  District  Councils,  by  order,  any  or  all  of 
the  powers  of  rural  parish  councils,  however,  and  so  render 
them  the  most  important  administrative  authorities  for  then 
area. 


240  THE   GOVERNMENT  OF   GREAT   BRITAIN. 

Women  are  eligible  to  serve  upon  District  Councils  as  well  as 
upon  parish  councils,  and  are  eligible  also  to  be  chosen  chairmen  ;  though 
a  woman,  if  chairman,  is  not  entitled  to  act  as  a  Justice  of  the*  Peace. 

The  County  Councils  have  a  certain  very  considerable  supervisory 
power  over  both  Rural  and  Urban  District  Councils,  fixing  or  altering  the 
number  of  Councillors,  hearing  appeals  from  the  parishes  against  their 
action  or  default,  etc. 

Municipal  Corporations.  —  The  constitution  of  those  Eng- 
lish towns  which  have  fully  developed  municipal  organizations 
rests  upon  the  Municipal  Corporations  Act  of  1835  and  its  vari- 
ous amendments,  as  codified  in  an  Act  of  1882  of  the  same  name. 
This  latter  Act  is,  in  its  turn,  in  some  degree  altered  by  the  Local 
Government  Act  of  1888.  If  the  inhabitants  of  any  place  wish 
to  have  it  incorporated  as  a  municipality,  they  must  address  a 
petition  to  that  effect  to  the  Privy  Council.  Notice  of  such  a 
petition  must  be  sent  to  the  Council  of  the  county  in  which  the 
place  is  situate  and  also  to  the  Local  Government  Board.  The 
Privy  Council  will  appoint  a  committee  to  consider  the  petition, 
who  will  visit  the  place  from  which  the  petition  comes  and  there 
see  and  hear  for  themselves  the  arguments  pro  and  con.  All 
representations  made  upon  the  subject  by  either  the  County 
Council  or  the  Local  Government  Board  must  also  be  considered. 

Generally  there  is  considerable  local  opposition  either  to  such  a 
petition  being  offered  or  to  its  being  granted  when  offered  ;  for  the  govern- 
ment of  the  place  is  usually  already  in  the  hands  of  numerous  local  author- 
ities of  one  kind  or  another  who  do  not  relish  the  idea  of  being  extin- 
guished ;  and  there  are  always,  besides,  persons  who  do  not  care  to  take 
part  in  bearing  the  additional  expenses  of  a  more  elaborate  organization. 

If  the  petition  be  granted,  the  Privy  Council  issues  a 
charter  of  incorporation  to  the  place,  arranging  for  the  extinction 
of  competing  local  authorities,  setting  the  limits  of  the  new 
municipality,  determining  the  number  of  its  councillors,  and 
often  even  marking  out  its  division  into  wards. 

Once  incorporated,  the  town  takes  its  constitution  ready- 
made  from  the  Act  under  whose  sanction  it  petitioned  for  incor- 
poration. That  Act  provides  that  the  borough  shall  be  governed 
by  a  mayor,  aldermen,  and  councillors.  The  councillors  hold 
office  for  a  term  of  three  years,  one-third  of  their  number  going 


THE   GOVERNMENT    OF    GREAT   BRITAIN.  241 

out,  in  rotation,  every  year.  There  are  always  added  to  the 
councillors  one-third  as  many  aldermen  elected  by  the  coun- 
cillors for  a  term  of  six  years,  one-half  of  their  number  retir- 
ing from  office  every  three  years,  by  rotation.  The  mayor  is 
elected  by  the  Council,  —  by  the  aldermen  and  councillors, 
that  is,  who  constitute  but  a  single  body,  —  holds  office  for 
one  year  only,  and,  unlike  the  councillors  and  aldermen,  receives 
a  salary. 

Judicial  Status  of  Boroughs.  —  Whatever  powers  are 
not  specifically  granted  to  a  municipality  remain  with  previously 
constituted  authorities.  The  Municipal  Corporations  Act  does 
not  provide  for  the  exercise  of  judicial  powers  by  the  authorities 
of  a  borough  by  virtue  of  their  separate  incorporation.  Unless 
additional  special  provision  is  made  to  the  contrary,  a  munici- 
pality remains,  for  the  purposes  of  justice,  a  part  of  the  county. 
By  petition,  however,  it  may  obtain  an  additional  '  commission  of 
the  peace '  for  itself,  or  even  an  independent  Court  of  Quarter 
Sessions. 

Either,  then,  (a)  a  borough  contents  itself  in  judicial  matters 
with  the  jurisdiction  of  the  county  Justices ;  or  (6)  it  obtains 
the  appointment  of  additional  Justices  of  its  own,  who  are,  how- 
ever, strictly,  members  of  the  county  commission  and  can  hold 
no  separate  Court  of  Quarter  Sessions ;  or  (c)  it  acquires  the 
privilege  of  having  Quarter  Sessions  of  its  own. 

In  the  latter  case  a  professional  lawyer  is  appointed  by  the 
Crown,  under  the  title  of  Recorder,  to  whom  is  given  the  power 
of  two  Justices  acting  together  and  the  exclusive  right  to  hold 
Quarter  Sessions,  —  who  is  made,  as  it  were,  a  multiple  Justice  of 
the  Peace. 

Boroughs  which  have  a  separate  commission  of  the  peace  are 
known  as  "  counties  of  towns  "  ;  those  which  have  independent 
Quarter  Sessions  as  "  quarter  sessions  boroughs."  Every  mayor 
is  ex  officio  Justice  of  the  Peace,  and  continues  to  enjoy  that  office 
for  one  year  after  the  expiration  of  his  term  as  mayor.  This  is 
true  even  when  his  borough  has  no  separate  commission  of  the 
peace, 


242  THE    GOVERNMENT    OF    GREAT    BRITAIN. 

County  Boroughs.  —  In  every  borough  the  mayor,  alder* 
men,  and  councillors,  who  sit  together  as  a  single  body,  constitute 
the  'Council'  of  the  corporation;  and  the  powers  of  the  Council, 
if  the  borough  be  a  'County  Borough/  are  very  broad  indeed. 
Since  the  passage  of  the  Local  Government  Act  of  1888,  it  is 
necessary  to  distinguish,  in  the  matter  of  powers,  several  classes 
of  boroughs.  'County  Boroughs  '  stand  apart  from  the  counties 
in  which  they  lie,  for  all  purposes  of  local  government,  as  com- 
pletely as  the  several  counties  stand  apart  from  each  other.  Ex- 
cept in  the  single  matter  of  the  management  of  their  police  force, 
they  may  not  even  arrange  with  the  county  authorities  for  merg- 
ing borough  with  county  affairs.  Their  Councils  may  be  said,  in 
general  terms,  to  have,  within  the  limits  of  the  borough,  all  the 
powers  once  belonging  to  the  county  Justices  except  those  strictly 
judicial  in  their  nature,  all  the  sanitary  powers  of  urban  sanitary 
authorities,  and  powers  of  school  administration,  —  all  regulative 
and  administrative  functions  except  those  of  the  poor-law  Unions 
into  which  urban  parishes  are  still  grouped.  In  the  case  of  these 
'  county  boroughs/  all  powers  conferred  upon  counties  are  powers 
conferred  upon  them  also. 

If  the  Council  of  any  borough  or  of  a  county  make  representation 
to  the  Local  Government  Board  that  it  is  desirable  to  constitute  a  borough 
which  has  come  to  have  a  population  of  not  less  than  fifty  thousand  a 
'  county  borough,'  the  Board  shall,  unless  there  be  some  special  reason  to 
the  contrary,  hold  a  local  inquiry  and  provide  for  the  gift  of  county  status 
to  the  borough  or  not  as  they  think  best.  If  they  order  the  borough  con- 
stituted a  'county  borough,'  the  order  is  provisional  merely,  and  must  be 
confirmed  by  Parliament. 

Other  Boroughs.  —  Boroughs  which  have  not  been  put  in 
the  same  rank  with  counties  and  given  full  privileges  of  self-ad- 
ministration as  'county  boroughs,'  fall  into  three  classes  in  respect 
of  their  governmental  relations  to  the  counties  in  which  they  lie : 
(1)  Those  which  have  their  own  Quarter  Sessions  and  whose 
population  is  ten  thousand  or  more.  These  constitute  for  several 
purposes  of  local  government  parts  of  the  counties  in  which  they 
are  situate.  The  main  roads  which  pass  through  them  are  cared 
for  by  the  county  authorities,  unless  within  twelve  months  after 
the  date  at  which  the  Act  of  1888  went  into  operation  (or  after 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  243 

the  date  at  which  any  road  was  declared  a  'main  road ')  the 
urban  authorities  specially  reserved  the  right  to  maintain  them 
separately.  They  contribute  to  the  county  funds  for  the  pay- 
ment of  the  costs  of  the  assizes  and  judicial  sessions  held  in  them. 
They  send  members,  too,  to  the  County  Council.  Their  repre- 
sentatives, however,  cannot  vote  in  the  County  Council  on  ques- 
tions affecting  expenditures  to  which  the  parishes  of  the  borough 
do  not  contribute  by  assessment  to  the  county  rates.  Beyond 
the  few  matters  thus  mentioned,  they  are  as  independent  and 
as  self-sufficient  in  their  organization  and  powers  as  the  'county 
boroughs '  themselves. 

(2)  Boroughs  which  have  separate  Quarter  Sessions  but  whose 
population  numbers  less  than  ten  thousand.     These  are  made  by 
the  Act  of  1888  to  yield  to  the  Councils  of  the  counties  in  which 
they  lie  the  powers  once  exercised  by  their  own  Councils  or  Jus- 
tices in  respect  of  the  maintenance  and  management  of  pauper 
lunatic  asylums,  their  control  of  coroners,  their  appointment  of 
analysts,  their  part  in  the  maintenance  and  management  of  re- 
formatory and  industrial  schools,  and  in  the  administration  of  the 
Acts  relating  to  fish  conservation,  explosives,  and  highways  and 
locomotives. 

(3)  Boroughs  which  have  not  a  separate  court  of  Quarter  Ses- 
sions and  whose  population  is  under  ten  thousand   are   for   all 
police  purposes  parts  of  the  counties  in  which  they  are  situate, 
and  have,  since  1888,  been,  for  all  save  a  few  of  the  more  exclu- 
sively local  matters  of  self-direction,  merged  in  the  counties,  in 
whose  Councils  they  are,  of  course,  like  all  other  parts  of  the 
counties,  represented. 

Every  borough  has  its  own  paid  Clerk  and  Treasurer,  who  are 
appointed  by  the  Council  and  hold  office  during  its  pleasure,  besides 
"such  other  officers  as  have  usually  been  appointed  in  the  borough,  or  as 
the  Council  think  necessary."  If  a  borough  have  its  own  Quarter  Ses- 
sions, it  has  also,  as  incident  to  that  Court,  its  own  Clerk  of  the  Peace  and 
its  own  Coroner. 

The  Financial  Powers  of  a  municipal  Council  are  in  all  cases 
strictly  limited  as  regards  the  borrowing  of  money.  "In  each  instance, 
when  a  loan  is  required  by  a  municipal  corporation,  the  controlling  au- 
thority [the  Local  Government  Board]  is  to  be  applied  to  for  its  consent. 
A  local  inquiry,  after  due  notice,  is  then  held,  and  if  the  loan  is  approved, 


244  THE  GOVERNMENT   OF   GREAT   BRITAIN. 

a  term  of  years  over  which  the  repayment  is  to  extend  is  fixed  by  the 
central  authority."  l  The  same  powers  are  exercised  by  the  Local  Gov- 
ernment Board  with  regard  to  the  larger  loans  of  parish  and  district  Coun- 
cils also. 

"The  accounts  of  most  local  authorities  are  now  audited  by  the 
Local  Government  Board,  but  boroughs  are  exempt  from  this  jurisdiction. 
The  audit  is  conducted  by  three  borough  auditors,  two  elected  by  the 
burgesses,  called  elective  auditors,  one  appointed  by  the  mayor,  called  the 
mayor's  auditor."  2 

Boroughs  and  Urban  Districts.  — The  difference  between 
boroughs  and  urban  districts  is  not  at  all  a  difference  of  size,  — 
boroughs  range  from  a  few  hundred  to  half  a  million  inhabitants 
and  urban  districts"  from  a  few  hundred  to  a  hundred  thousand  ; 2 
it  has  hitherto  been  a  difference,  apparently,  of  local  preference, 
rather,  and  of  legal  convenience.  The  boundaries  of  a  borough, 
when  once  fixed  by  a  charter  of  incorporation,  could,  until  the 
passage  of  the  Act  of  1888,  be  altered  only  by  a  special  Act  of 
Parliament :  it  was  much  easier  to  apply  to  the  Local  Govern- 
ment Board,  which  could  of  its  own  authority  create  what  was 
then  known  as  an  Urban  Sanitary  District.  AS  towns  already 
incorporated  grew,  therefore,  the  added  portions  became  inde- 
pendently incorporated  as  Urban  Sanitary  Districts,  and  thus 
the  town  was  pieced  out.  One  writer  was  able  to  say,  in  1882, 
"Nowhere,  from  one  end  of  England  to  the  other,  do  we  find 
an  instance  (Nottingham  alone  excepted)  of  a  large  borough 
which  is  municipally  self-contained,  and  consequently  self-gov- 
erning." 3 

In  the  Local  Government  Act  of  1888  it  was  provided  that  the 
boundaries  of  a  borough  might  be  altered  by  provisional  order  of  the 
Local  Government  Board,  upon  the  address  of  the  borough  Council. 
This  order,  being  provisional,  must  receive  the  sanction  of  Parliament, 
and  is  made  only  after  local  inquiry.  The  proceedings,  therefore,  for 
changing  the  boundaries  of  a  borough  were  still  left  much  more  elaborate 
and  difficult  than  the  free  action  of  the  Local  Government  Board  with 
reference  to  urban  districts. 

Central  Control  of  Urban  Authorities.  — Full  municipal  cor- 
porations look  partly  (in  the  matter  of  sanitary  regulation,  for  example,) 

iBunce,  Golden  Club  Essays,  1882,  p.  283;  title,  "Municipal  Boroughs 
wad  Urban  Districts."  2  Chalmers,  p.  87.  8  Bunce,  p.  298. 


THE   GOVERNMENT   OF    GREAT    BRITAIN.  245 

to  the  Local  Government  Board  as  a  central  authority  exercising  powers 
of  supervision,  partly  (in  the  management  of  the  constabulary,  for  in- 
stance,) to  the  Home  Office,  and  partly  (if  seaports)  to  the  Board  of 
Trade.  Urban  Districts,  however,  have  but  a  single  central  authority  set 
over  them,  the  Local  Government  Board. 

London.  —  The  metropolis  was,  until  the  passage  of  the 
Act  of  1888,  the  unsolved  problem,  the  unregenerate  monster, 
of  local  government  in  England.  The  vast  aggregation  of  houses 
and  population  known  by  the  world  as  '  London/  spreading  its 
unwieldy  bulk  over  parts  of  the  three  counties  of  Middlesex, 
Surrey,  and  Kent,  consisted  of  the  City  of  London,  a  small  cor- 
poration at  its  centre  confined  within  almost  forgotten  boundaries, 
still  possessing  and  belligerently  defending  mediaeval  privileges 
and  following  mediaeval  types  of  organization  and  procedure,  and, 
round  about  this  ancient  City  as  a  nucleus,  a  congeries  of  hundreds 
of  old  parishes  and  new  urban  districts  made  from  time  to  time 
to  meet  the  needs  of  newly  grown  portions  of  the  inorganic  mass. 
This  heterogeneous  body  of  mediaeval  trade  guilds,  vestries,  and 
sanitary  authorities  had  been  in  some  sort  bound  together  since 
1855  by  a  Metropolitan  Board  of  Works  which  exercised  certain 
powers  over  the  whole  area  outside  the  *  City.' 

The  Local  Government  Act  of  1888  made  of  the  metrop- 
olis, not  a  'county  borough/  but  a  county,  —  the  'Administra- 
tive County  of  London  '  -  —  with  its  own  Lord  Lieutenant,  Sheriff, 
and  Commission  of  the  Peace,  as  well  as  its  own  Council.  Its 
numerous  parishes  were  left  to  act,  as  formerly,  under  their  sev- 
eral vestries ;  and  the  Act  of  1894  gave  to  those  vestries  the 
same  constitution  and  substantially  the  same  powers  that  are 
elsewhere  in  the  kingdom  possessed  by  the  Urban  District  Coun- 
cils (page  239).  The  London  Government  Act  of  1899  still  further 
consolidated  and  coordinated  the  administration  by  creating 
twenty-eight  metropolitan  boroughs,  each  with  its  own  mayor, 
aldermen,  and  councillors,  with  specially  defined  powers,  which, 
in  the  matter  of  finance,  are  considerably  limited.  The  'City7 
is  still  left  to  occupy  its  separate  place  in  the  great  metropolitan 
county  as  a  quarter  sessions  borough  not  enjoying  separate  county 
privileges,  —  with  some  limitations  special  to  its  case. 


246  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

The  number  of  councillors  in  the  London  County  Council  is 
fixed  at  twice  the  number  of  members  returned  to  Parliament  at 
the  time  of  the  passage  of  the  Act  of  1888  by  the  various  con- 
stituencies of  the  metropolitan  area.  The  councillors,  thus,  number 
118.  The  Council  of  the  Metropolis  is  put  upon  an  exceptional 
footing  with  regard  to  its  quota  of  aldermen.  The  aldermen  are 
to  be  one-sixth,  instead  of  one-third,  as  many  as  the  councillors. 
The  total  membership  of  the  London  Council  is,  therefore,  137. 
Central  Control.  —  The  plan  of  central  control  in  Eng- 
land is  manifestly  quite  indigenous.  The  central  government  is 
not  present  in  local  administration  in  the  person  of  any  superin- 
tending official  like  the  French  Prefect  (pages  167,  168,  170),  or 
any  dominant  board  like  the  '  Administration '  of  the  Prussian 
Government  District  (pages  480-481).  There  has,  indeed,  been 
developing  in  England  a  marked  tendency  to  bring  local  author- 
ities more  and  more  under  the  supervision  in  important  matters 
of  the  government  departments  in  London,  —  a  tendency  which 
has  led  to  the  concentration,  since  1871,  in  the  hands  of  the  Local 
Government  Board  of  various  powers  once  scattered  among  such 
authorities  as  the  Home  Office,  the  Privy  Council,  etc.  But  this 
tendency,  which  is  towards  control,  has  not  been  towards  cen- 
tralization. It  has,  so  far,  not  gone  beyond  making  the  ad- 
vice of  the  central  authority  always  accessible  by  local  officers 
or  bodies,  and  its  consent  necessary  to  certain  classes  of  local 
undertakings.  The  central  government  has  not  itself  often 
assumed  powers  of  origination  or  initiative  in  local  affairs.  Even 
where  the  Local  Government  Board  is  given  completest  power 
the  choice  of  the  officers  who  are  to  put  its  regulations  into  force 
is  generally  left  with  the  ratepayers  in  the  districts  concerned. 
Thus  the  authority  of  the  Board  over  the  Guardians  of  the  Poor 
is  complete  ;  but  the  Guardians  are  elected  in  the  parishes.  Its 
authority  in  sanitary  matters  makes  its  directions  imperative  as 
to  the  execution  of  the  Public  Health  Acts ;  but  in  many  cases 
the  local  health  officers  are  appointees  of  the  local  bodies.  The 
by-laws  enacted  by  the  county  authorities,  unless  they  affect 
nuisances,  may  be  annulled  by  an  order  in  Council ;  in  the  matter 
of  borrowing  money,  too,  local  authorities  are  narrowly  bound  by 
the  action  of  the  Local  Government  Board ;  and  its  assent  to 


THE   GOVERNMENT    OF    GREAT   BRITAIN.  247 

propositions  to  raise  loans  is  sejdom  given  without  very  thorough 
inquiry  and  without  good  reason  shown.  But  all  these  are  func- 
tions of  system,  so  to  say,  rather  than  of  centralization.  Coordi- 
nation in  methods  of  poor-relief  is  sought,  that  relief  being  given 
under  national  statutes,  and  the  cooperation  of  central  with  local 
judgment  in  financial  matters,  local  debts  constituting  a  very 
proper  subdivision  of  national  finance.  But  the  spirit  in  which 
the  control  is  exercised,  as  well  as  the  absence  of  permanent 
officials  representing  the  central  authority  in  local  government, 
and  even  of  permanent  instrumentalities  for  the  administration  of 
financial  advice,  bespeak  a  system  of  cooperation  and  advice  rather 
than  of  centralization. 

Local  Government  in  Scotland. — An  Act  of  1889  ex- 
tended to  Scotland  a  system  of  county  government  substantially 
the  same  as  that  created  for  England  by  the  Act  of  1888 ;  and  the 
Act  of  1894  put  parish  councils  like  those  of  England  into  the 
place  formerly  held  by  parochial  Boards,  and  erected  a  separate 
Local  Government  Board  for  Scotland,  of  which  the  Secretary  for 
Scotland  was  made  President. 

THE  GOVERNMENT  OF  THE  ENGLISH  COLONIES. 

English  Colonial  Expansion.  —  Doubtless  the  most  sig- 
nificant and  momentous  fact  of  modern  history  is  the  wide  diffu- 
sion of  the  English  race,  the  sweep  of  its  commerce,  the  dominance 
of  its  institutions,  its  imperial  control  of  the  destinies  of  half 
the  globe.  When,  by  reason  of  the  closing  of  the  old  doors  of 
the  East  by  the  Turk  and  the  consequent  turning  about  of  Europe 
to  face  the  Atlantic  instead  of  the  Mediterranean,  England  was 
put  at  the  front  instead  of  at  the  back  of  the  nations  of  the  Con- 
tinent, a  profound  revolution  was  prepared  in  the  politics  of  the 
world.  England  soon  defeated  Holland  and  Spain  and  Portugal, 
her  rivals  for  the  control  of  the  Atlantic  and  its  new  continents ; 
and  steadily,  step  by  step,  she  has  taken  possession  of  almost 
every  new  land  worth  the  having  in  whatever  quarter  of  the 
globe.  With  her  conquests  and  her  settlers  have  "gone  also  her 
institutions,  until  now  her  people  everywhere  stand  for  types  of 
free  men,  her  institutions  for  models  of  free  government 


248  THE   GOVERNMENT    OF    GREAT   BRITAIN. 

English  Colonial  Policy.  —  It  was  only  by  slow  degrees, 
however,  that  England  learned  the  right  policy  towards  her  colo- 
nies. She  began,  as  Borne  did,  by  regarding  her  possessions  as 
estates,  to  be  farmed  for  her  own  selfish  benefit.  Nothing  less 
than  the  loss  of  America  sufficed  to  teach  her  how  short-sighted 
such  a  policy  was.  But,  unlike  Rome,  she  was  fortunate  enough 
to  lose  the  best  part  of  her  possessions  without  being  herself 
overwhelmed ;  and  even  after  the  loss  of  America  time  and  op- 
portunity offered  for  the  building  up  of  another  colonial  empire 
scarcely  less  great. 

Towards  her  present  colonies  her  policy  is  most  liberal ;  for 
the  England  of  the  present  day  is  a  very  different  England  from 
that  which  drove  America  into  rebellion.  Even  the  notable 
lesson  emphasized  in  the  loss  of  America  would  not  have  sufficed 
to  bring  England  to  her  senses  touching  her  true  interests  in  the 
colonies,  had  she  not  herself  speedily  thereafter  been  brought  by 
other  causes  to  a  change  of  heart.  The  movements  of  opinion 
which  stirred  her  to  religious  revival,  to  prison  reform,  to  en- 
lightened charity,  to  the  reform  of  parliamentary  representation, 
to  a  general  social  and  political  regeneration,  stirred  her  also,  no 
doubt,  to  vouchsafe  to  her  colonists  full  rights  as  Englishmen. 

Lord  Durham  in  Canada.  —  The  turning  point  was 
reached  in  1837,  when  a  rebellion  broke  out  in  Lower  Canada. 
Lower  Canada  was  French  Canada.  Its  government,  like  the 
governments  of  the  American  states  south  of  it  in  their  own 
colonial  times,  consisted  of  an  Executive,  a  Legislative  Council 
nominated  by  the  Crown,  and  a  legislative  chamber  elected  by 
the  colonists.  The  colonists  had  been  exasperated  by  just  such 
arbitrariness  and  lack  of  sympathy  on  the  part  of  the  Governor 
and  his  Council,  and  just  such  efforts  to  make  the  salaries  and 
the  maintenance  of  the  judicial  officers  of  the  colony  independent 
of  the  appropriations  voted  by  the  popular  assembly,  as  had 
hastened  the  separation  of  the  United  States  from  England ;  and 
at  last  rebellion  had  been  made  to  speak  the  demands  of  the  colo- 
nists for  constitutional  reform.  The  rebellion  was  put  down,  but 
the  defeated  colonists  were  not  treated  as  they  would  have  been 
in  1776.  A  royal  commissioner  was  sent  out  to-  them  from  the 
mother  country  to  redress  their  grievances  by  liberal  measures  of 


THE   GOVERNMENT    OF   GREAT   BRITAIN.  249 

concession  and  reform.  This  commissioner  was  Lord  Durham. 
He  spoiled  his  mission  by  well-meant  but  arbitrary  conduct  which 
was  misunderstood  at  home,  and  he  was  recalled  ;  but  his  report 
upon  the  condition  of  Canada  and  the  measures  necessary  for 
her  pacification  may  justly  be  called  the  fountain  head  of  all  that 
England  has  since  done  for  the  betterment  of  government  in  her 
colonies.  Lord  Durham  recommended  nothing  less  than  complete 
self-government,  with  interference  from  England  in  nothing  but 
questions  immediately  and  evidently  affecting  imperial  interests. 
1847  saw  independent  responsible  self-government  completely  es- 
tablished in  Canada,  and  subsequent  years  have  seen  it  extended 
to  all  the  British  colonies  capable  of  self-direction. 

The  Self-governing  Colonies.  —  The  English  colonies,  as 
at  present  organized,  may  be  roughly  classified  in  two  groups  as 
(a)  Self -governing  and  (6)  Crown  colonies.  The  self-governing 
colonies  are  five  in  number ;  namely,  Canada,  Newfoundland, 
the  Commonwealth  of  Australia,  the  Union  of  South  Africa, 
and  New  Zealand.  In  all  of  these  there  is  practically  complete 
independence  of  legislation  in  all  matters  not  directly  touching 
imperial  interests :  and  in  all  there  is  full  responsible  govern- 
ment,—  government,  that  is,  through  ministers  responsible  to 
representatives  of  the  people  for  their  policy  and  for  all  executive 
acts,  because  chosen  from  and  representing  the  majority  in  the 
popular  chamber.  In  Tasmania,  and  the  Commonwealth  of 
Australia,  both  branches  of  the  legislature  are  elected ;  in  the 
others  the  upper  chamber  is  nominated  by  the  Executive  save  in 
the  Union  of  South  Africa,  where  it  is  partly  appointed  and 
partly  elected.  But  the  origin  of  the  upper  chamber  does  not 
affect  the  full  responsibility  of  the  ministers  or  the  practically 
complete  self-direction  of  the  colony. 

The  Government  of  Canada.  —  In  1840  Parliament  pro- 
vided by  Act  for  the  union  of  Upper  and  Lower  Canada  (now  the 
provinces  of  Ontario  and  Quebec)  upon  a  basis  suggested  by  Lord 
Durham's  report ;  but  the  legislative  union  of  these  two  provinces, 
the  one  English,  the  other  almost  wholly  French,  was  ill-advised 
and  proved  provisional  only.  Although  an  Act  of  1854  granted 
to  the  united  colonies  a  government  as  nearly  as  might  be  mod- 
elled upon  the  government  of  England  herself,  no  satisfactory 


250  THE   GOVERNMENT    OF    GREAT   BRITAIN, 

basis  of  self-government  was  reached  until,  by  the  '  British  North 
America  Act '  of  1867,  the  colonies  were  at  once  separated  and  re- 
integrated by  means  of  a  federal  constitution.  That  Act  is  the 
present  constitution  of  the  '  Dominion  of  Canada.'  Under  that 
constitution  the  nine  provinces  now  comprised  within  the  Do- 
minion, namely,  Ontario,  Quebec,  Nova  Scotia,  New  Brunswick, 
Manitoba,  British  Columbia,  Prince  Edward  Island,  Alberta,  and 
Saskatchewan,  have  each  a  separate  parliament  and  administra- 
tion. In  each  a  Lieutenant-Governor  presides  ;  in  each,  as  in  the 
Dominion  itself,  there  is  a  ministry  responsible  for  its  policy  and 
executive  acts  to  a  parliament  fully  equipped  for  self-direction  in 
local  affairs. 

The  provisions  of  the  British  North  America  Act  were  drafted 
in  Canada  and  accepted  by  the  Parliament  in  England  without 
alteration.  In  the  division  of  powers  which  they  make  between 
the  government  of  the  Dominion  and  the  governments  of  the 
several  provinces,  they  differ  very  radically  in  character  from 
the  provisions  of  our  own  federal  constitution.  Our  constitution 
grants  certain  specified  powers  to  the  general  government  and 
reserves  the  rest  to  the  states ;  the  British  North  America  Act, 
on  the  contrary,  grants  certain  specified  powers  to  the  provinces 
and  reserves  all  others  to  the  government  of  the  Dominion. 
Among  the  powers  thus  reserved  to  the  federal  government  is 
that  of  enacting  all  criminal  laws. 

In  all  the  provinces  except  Quebec  and  Nova  Scotia  the  legis- 
lature consists  of  but  a  single  house. 

The  government  of  the  Dominion  is  for  the  most  part  a  very 
faithful  reproduction  of  the  government  of  the  mother  country. 
The  Crown  is  represented  by  the  Governor-General,  who  acts 
in  the  administration  of  the  colony  as  the  Crown  acts  in  the 
administration  of  the  kingdom,  through  responsible  ministers, 
and  whose  veto  upon  legislation  is  never  used,  though  bills  about 
whose  bearing  upon  imperial  policy  there  were  serious  doubts 
have  been  reserved  for  the  approval  of  the  king  in  Council  (that 
is,  of  the  ministry  of  the  day  in  England).1  The  '  Cabinet'  is  a 
body  unknown  to  the  written  constitution,  but  it  comprises  those 

1  Only  one  such  bill  has  been  refused  the  Koyal  assent. 


THE   GOVERNMENT   OF   GKEAT   BRITAIN.  251 

members  of  the  Privy  Council  who  are  also  members  of  Parlia- 
ment who  for  the  time  being  represent  the  views  and  policies  of 
the  majority  in  the  popular  house  of  the  legislature,  leading  that 
house  in  legislation,  and  in  all  its  functions  following  the  prece- 
dents of  responsible  cabinet  government  established  in  England. 
The  legislature  consists  of  two  houses,  the  Senate  and  the  House 
of  Commons.  The  Senate  consists  of  ninety-six  members  nomi- 
nated for  life  by  the  Governor-General,  —  that  is,  in  effect, 
appointed  by  the  Dominion  ministers ;  for  in  the  composition  of 
the  Senate,  as  in  the  creation  of  peers  at  home,  the  advice  of  the 
ministers  is  decisive.1  Each  Senator  must  be  at  least  thirty 
years  of  age,  must  reside  in  the  province  for  which  he  is  ap- 
pointed, and  must  possess  therein  property,  real  or  personal,  to 
the  value  of  four  thousand  dollars.  The  House  of  Commons 
consists  of  two  hundred  and  twenty-one  members  elected  from 
the  several  provinces,  for  a  term  of  five  years,  upon  the  basis  of 
one  representative  for  every  22,688  inhabitants,  it  being  under- 
stood, however,  that  Quebec  shall  never  have  less  than  sixty-five 
members. 

The  eighteen  ministers  composing  the  cabinet  are,  the  Prime 
Minister  and  President  of  the  Council,  Secretary  of  State,  Min- 
ister of  Trade  and  Commerce,  Ministers  of  Justice,  Marine  and 
Fisheries,  Railways  and  Canals,  Militia  and  Defence,  Finance, 
Agriculture,  Public  Works,  Interior,  Labor,  Customs,  Inland 
Revenue,  Solicitor-General,  Postmaster-General,  and  two  min- 
isters without  portfolios. 

The  distribution  of  representation  in  the  Dominion  House  of 
Commons  is  at  present  as  follows :  Ontario  has  92  members, 
Quebec  65,  Nova  Scotia  20,  New  Brunswick  14,  Manitoba  7, 
British  Columbia  6,  Prince  Edward  Island  5,  and  the  North  West 
Territories  4.  The  representatives  are  elected  by  a  franchise 
based  upon  a  small  property  qualification. 

The  Parliament  of  the  Dominion  may  be  dissolved  by  the  Gov- 
ernor-General upon  the  advice  of  the  ministers,  and  a  new  Election 

1  The  power  is  reserved  to  the  sovereign,  upon  recommendation  of  the 
Governor-General,  to  direct  that  four  or  eight  members  be  added  to  the 
Senate  from  the  four  divisions  of  Canada  equally,  but  this  power  has  never 
been  exercised. 


252  THE   GOVERNMENT    OF    GREAT    BRITAIN. 

held,  as  in  England,  when  an   appeal  to  the  constituencies  is 
deemed  necessary  or  desirable. 

THE  COMMONWEALTH  OF  AUSTRALIA. 

History  of  Federation.  —  The  early  settlements  in  Aus- 
tralia, treated  as  little  more  than  convict  stations,  were  ruled  by  the 
Governor  as  he  pleased,  but  as  early  as  1823  the  need  for  a  legis- 
lative body  in  New  South  Wales  was  met  by  vesting  this  function 
in  an  appointed  Council.  In  1842  the  principle  of  representation 
was  introduced  into  the  Council,  though  one-third  of  its  number 
remained  appointive,  and  in  1850  two  houses  were  substituted 
for  the  single  Council  and  responsible  government  was  introduced 
at  the  same  time.  As  the  other  colonies  in  Australia  grew  in  popu- 
lation, representative  institutions  and  responsible  government 
were  introduced,  the  last  colony  to  complete  the  process  being 
Western  Australia  in  1890.  The  six  colonies,  New  South  Wales, 
Victoria,  South  Australia,  Tasmania,  Queensland,  and  Western 
Australia,  were  all  in  possession  of  substantially  identical  forms 
of  government,  consisting  of  a  Governor  appointed  by  the  Crown 
and  advised  by  a  Council,  composed  in  part  by  the  ministers  of 
the  day,  and  of  a  dual  legislative  body,  the  Parliament,  to  which 
the  ministers  were  responsible.  The  constitutions  of  all  the 
colonies  were  originally  framed  in  the  colonies,  and  subsequently 
enacted,  with  amendments,  by  the  Parliament  at  Westminster. 

Trade  and  the  customs  formed  from  the  beginning  a  strong  in- 
centive toward  federation,  and  in  1873  the  Imperial  Parliament 
removed  the  legal  bars  which  had  made  a  Customs  Union  im- 
possible, yet  the  divergent  economic  interests  and  tariff  policies 
of  the  colonies  stood  in  the  way.  The  Federal  Council  of 
Australasia  Act,  passed  by  Parliament  in  1885,  created  a  Council 
with  limited  powers  to  deal  with  certain  common  interests  in  the 
South  Pacific.  There  was  no  executive  or  judicial  power  created 
by  the  Act,  and  the  Council  lacked  the  power  to  raise  revenue  or 
expend  money.  Membership  in  the  Council  was  optional.  Yet 
the  Council  legislated  with  respect  to  a  number  of  matters,  and 
continued  in  existence  till  1899. 

The  sentiment  in  favor  of  federation  had  been  steadily  gaining, 


THE   GOVKKNMKNT    OF    GREAT    BRITAIN.  253 

and  in  1887  the  question  of  defence  added  its  weight  when,  at  the 
Imperial  Conference  at  London,  Australia  as  a  whole  agreed  to 
furnish  an  annual  subsidy  of  £  226,000  towards  the  expense  of  a 
separate  squadron  on  the  Australian  station.  Conferences  were 
held  in  1890  and  1891,  in  which  resolutions  were  passed  laying 
down  the  basis  on  which  federation  should  take  place ;  but  it  was 
not  until  1897  that  a  convention  assembled  at  Adelaide  to  frame 
a  federal  constitution.  The  proposed  constitution  was  then  sub- 
mitted to  the  legislatures  of  the  colonies,  and  after  consideration 
by  them,  the  convention  reassembled  at  Sydney  to  consider  the 
changes  which  had  been  suggested. 

The  larger  colonies  demanded  that  greater  consideration  should 
be  given  to  population,  and  the  smaller  colonies  sought  to  preserve 
their  autonomy.  The  position  and  mode  of  election  of  the  Senate 
was  the  source  of  the  greatest  difference  of  opinion,  but  finally  a 
draft  was  agreed  upon  which,  when  submitted  to  the  colonies, 
failed  of  ratification.  Subsequently  compromises  were  made  to 
meet  the  objections,  chiefly  of  New  South  Wales,  and  five  colo- 
nies accepted  the  proposed  constitution  by  popular  vote.  It  was 
then  forwarded  to  the  Imperial  Parliament  for  enactment. 
Western  Australia,  which  had  held  aloof,  asked  for  the  right 
to  join  the  federation,  and  in  1900  Parliament  passed  the 
Commonwealth  of  Australia  Act.  By  proclamation  the  date 
of  the  establishment  of  the  Commonwealth  was  fixed  as  January 
1,  1901. 

The  Constitution.  —  The  Constitution  is  an  Act  of  the  Im- 
perial Parliament,  and  is  in  legal  theory  subject  to  change  by  that 
body  whenever  it  chooses,  though  in  practice  it  is  not  probable  that 
any  changes  would  be  made  which  were  contrary  to  the  wishes  of 
the  Commonwealth.  The  Commonwealth  differs  from  Canada  in 
its  fundamentals ;  in  the  latter  the  provinces  are  far  less  inde- 
pendent of  the  Dominion  government  than  are  the  states  of  the 
Commonwealth;  as  provinces  they  have  no  participation  or 
representation  in  the  central  government  whereas  in  the  former 
the  separate  character  of  the  states  finds  representation  in  the 
Senate,  as  in  the  case  of  the  United  States.  Moreover,  the 
powers  of  the  Commonwealth  are  delegated,  while  in  Canada  it  is 
the  government  of  the  Dominion  which  possesses  the  reservoir  of 


254  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

powers,  and  the  provinces  have  only  those  powers  which  have 
been  granted  to  them.  In  Canada  the  lieutenant-governors  of 
the  provinces  are  appointed  by  the  Governor-General,  in  Aus- 
tralia the  governors  of  the  states  are  appointed  by  the  Crown. 
In  short,  Australia  is  far  more  of  a  federal  state  than  is 
Canada. 

The  Executive.  —  The  Executive  of  the  Commonwealth 
is  vested  in  a  Governor-General,  appointed  by  the  King,  and  his 
power  extends  to  the  maintenance  of  the  Constitution  and  the 
laws  of  the  Commonwealth,  but  inasmuch  as  responsible  gov- 
ernment exists  in  the  Commonwealth  as  it  had  existed  and  still 
exists  in  the  individual  states,  the  real  executive  power  is  vested 
in  the  ministry,  which  is  responsible  to  Parliament.  The  min- 
istry constitute  the  Governor-General's  Executive  Council,  whose 
advice  he  must  accept.  The  following  ministries  have  been  estab- 
lished in  the  Commonwealth  :  External  Affairs,  Attorney-General, 
Home  Affairs,  Treasury,  Trade  and  Customs,  Defence,  and  the 
Postmaster-General.  There  have  also  been  ministers  without 
portfolio. 

Instability  of  Ministries.  —  Both  in  the  Commonwealth  and 
in  the  individual  states  changes  of  ministries  have  been  frequent, 
due  to  the  absence  of  questions  on  which  parties  could  divide  on 
party  lines.  The  Labor  party  is  the  only  one  which  is  effec- 
tively organized.  There  is  a  conspicuous  absence  of  loyalty  to 
party  leaders,  and  as  a  result  ministries  are  weak  and  easily 
overthrown.  In  the  states  the  small  size  of  the  Parliament 
makes  government  more  difficult,  since  the  absence  of  a  mem- 
ber or  two  in  a  small  House  may  result  in  the  overthrow  of  a 
government. 

The  Parliament.  —  The  Parliament  of  the  Commonwealth 
is  composed  of  a  Senate  and  a  House  of  Representatives.  Until 
Parliament  shall  otherwise  provide,  the  Senate  is  composed  of 
six  senators  from  each  of  the  original  states,  directly  chosen  by 
the  people  of  each  state.  The  number  of  senators  may  be  in- 
creased or  diminished,  but  the  number  of  senators  from  each  of 
the  original  states  may  not  be  less  than  six,  and  the  equality  of 
their  representation  must  be  maintained.  The  term  of  senators 
is  six  years,  and  one-half  retire  every  three  years.  A  senator 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  255 

must  be  twenty-one  years  of  age,  a  native-born  or  naturalized 
citizen,  and  if  the  latter,  he  must  have  been  a  citizen  at  least  five 
years ;  he  must  be  entitled  to  vote  at  the  election  of  members  of 
the  House  of  Representatives  and  have  been  for  three  years  a 
resident  of  the  Commonwealth ;  also  he  must  not  be  under  cer- 
tain legal  disabilities. 

The  membership  of  the  House  of  Representatives  is  seventy- 
five,  of  whom  27  are  from  New  South  Wales,  22  from  Victoria, 
9  from  Queensland,  7  from  South  Australia,  and  5  each  from 
Western  Australia  and  Tasmania.  The  term  of  members  is  three 
years,  unless  sooner  terminated  by  dissolution. 

The  powers  of  Parliament  are  fixed  by  the  Constitution,  and 
extend  in  general  to  all  powers  affecting  the  common  interests 
of  all  the  states.  Except  with  respect  to  finance  bills,  the  Senate 
and  the  House  have  equal  power  over  legislation.  All  bills  for 
raising  revenue  or  •  appropriating  money  must  originate  in  the 
House  and  cannot  be  amended  by  the  Senate,  but  such  bills  may 
be  returned  to  the  House  by  message  with  the  request  for  the 
omission  or  amendment  of  any  items.  The  House  may  or  may  not 
accept  the  suggestions,  as  it  sees  fit.  With  respect  to  other  legis- 
lation, if  the  Senate  does  not  accept  a  bill  which  has  passed  the 
House,  and  if  the  House  after  an  interval  of  three  months,  whether 
in  the  same  session  or  the  next,  shall  again  pass  the  measure,  the 
Governor-General  may  dissolve  both  the  Senate  and  the  House 
simultaneously  ;  if  after  the  dissolution  the  bill  is  again  passed 
by  the  House  and  fails  to  pass  the  Senate,  the  Governor-General 
may  convene  a  joint  session  of  the  two  Houses,  and  if  the  bill  is 
passed  by  a  majority  of  the  total  membership  of  both  Houses  in 
joint  session,  it  shall  be  taken  as  having  been  approved  by  Par- 
liament and  shall  go  to  the  Governor-General  for  the  King's 
assent. 

The  Powers  of  the  Colonial  Courts.  —  The  action  of  the 
courts  in  the  colonies  on  certain  questions  furnishes  an  instructive 
counterpart  to  the  constitutional  functions  of  our  own  courts. 
The  colonial  governments  are  conducted  under  written  constitu- 
tions as  our  own  governments  are,  though  their  constitutions 
are  imperial  statutes,  while  ours  are  drafted  by  conventions  and 
adopted  by  a  vote  of  the  people.  And  colonial  courts  exercise  the 


256  THE   GOVERNMENT    OF    GUEAT   BRITAIN. 

same  power  of  constitutional  interpretation  that  belongs  to  our 
own  courts  and  that  has  often  been  carelessly  assumed  to  be  a 
peculiar  prerogative  of  theirs.  They  test  acts  of  legislation  by 
the  grants  of  power  under  which  they  are  enacted,  an  appeal 
lying  from  them  to  the  Judicial  Committee  of  the  Privy  Council 
in  England,  which  serves  as  a  general  supreme  court  for  the 
colonies. 

The  Union  of  South  Africa.  —  Before  the  Boer  War  the 
two  English  colonies  in  South  Africa,  the  Cape  of  Good  Hope 
and  Natal,  both  enjoyed  responsible  government,  and  the  Cape 
Colony  was  one  of  the  few  English  colonies  in  which  both  houses 
of  the  legislature  were  elected.  The  terms  of  surrender  of  the 
Boer  forces  in  the  field  provided  that  representative  institutions 
should  be  granted  to  the  conquered  colonies  of  the  Transvaal 
and  the  Orange  River,  and  that  at  the  earliest  possible  moment 
they  should  be  given  self-government  of  the  usual  colonial  type. 
Upon  the  accession  to  power,  in  1906,  of  the  Liberal  ministry 
under  Sir  Henry  Campbell-Bannerman,  the  time  was  thought 
ripe  for  carrying  out  these  terms,  and  so  full  ministerial  responsi- 
bility for  the  general  government  of  these  two  colonies  was  es- 
tablished by  letters  patent,  in  the  Transvaal  in  December,  1906, 
and  the  Orange  River  Colony  in  June,  1907. 

These  four  English  colonies  in  South  Africa,  so  lately  enemies, 
were  faced  with  certain  common  interests  and  problems,  which, 
despite  race  antagonisms  and  some  conflicting  interests,  proved 
strong  enough  to  draw  them  together  into  a  union.  Most  press- 
ing of  all  the  problems  —  and  one  still  awaiting  a  solution  —  is 
that  of  the  native  races,  —  the  menace  that  South  Africa  might 
become  a  black  man's  country.  Singly  the  colonies  might  have 
found  their  resources  insufficient  to  meet  a  great  native  uprising, 
but  united  they  are  in  large  measure  relieved  from  that  fear. 
Railways  and  tariffs  were  other  matters  demanding  common  com- 
trol  and  uniform  action  if  the  prosperity  of  all  the  colonies  was 
to  be  fostered.  Discrimination  of  one  colony  against  the  other 
created  a  strong  incentive  to  union.  A  customs  union  of  the 
four  colonies  and  of  Rhodesia,  together  with  the  territories 
under  the  administration  of  the  High  Commissioner  for  South 
Africa,  had  been  formed  in  1903  and  was  renewed  in  1906.  An 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  257 

Intercolonial  Council  for  the  administration  of  the  railways  of 
the  Transvaal  and  the  Orange  River  Colony  was  inaugurated  in 
1902,  so  that  the  colonies  were  not  without  some  experience  of 
the  habit  and  advantage  of  common  action.  The  real  stimulus  to 
union  came  after  the  granting  of  self-government  to  the  Trans- 
vaal and  the  Orange  River  Colony,  at  the  conference  of  May, 
1908,  for  the  revision  of  customs  and  railway  rates.  Delegates 
from  the  several  colonies  were  selected  upon  the  authorization  of 
the  four  colonial  governments,  who  took  up  in  convention  the 
discussion  of  a  basis  of  unification  of  South  Africa.  The  work  of 
this  convention  was  done  in  secret,  the  members  well  knowing 
that  a  public  discussion  of  the  delicate  questions  with  which  it 
was  confronted  would  prove  fatal  to  any  hope  of  union.  The 
results  of  the  convention's  labors  were  submitted  to  the  Parlia- 
ments of  the  colonies  —  and  in  Natal  to  a  referendum  —  and  after 
ratification  delegates  were  appointed  by  the  Parliaments  to  pro- 
ceed to  England  and  secure  the  enactment  by  Parliament  of  the 
proposed  plan  of  union.  This  was  done,  and  the  Union  of  South 
Africa  Act  was  passed  in  1909,  and  the  Union  itself  was  inaugu- 
rated on  May  31,  1910. 

Plan  of  the  Union.  —  The  Union  of  South  Africa  differs 
fundamentally  from  the  federal  arrangements  of  Canada  and 
Australia.  In  them  are  present  the  characteristic  features  of 
federalism  —  the  supremacy  of  the  constitution,  the  distribution 
of  the  powers  of  government  among  bodies  of  limited  and  co- 
ordinate authority,  and  the  authority  of  the  courts  to  interpret 
the  constitution.  Not  one  of  these  features  is  present  in  the 
Union  of  South  Africa ;  the  Parliament,  not  the  constitution,  is 
supreme  ;  power  is  not  divided  among  coordinate  authorities  with 
limited  functions,  but  rests  ultimately  in  the  Parliament;  the 
courts  have  not  the  right  to  interpret  the  constitution  by  declar- 
ing a  law  unconstitutional,  but  their  function  will  be  identical 
with  that  of  the  courts  in  England.  In  short,  the  supremacy  of 
the  Parliament  within  the  Union  has  been  secured  in  much  the 
same  way,  though  not  to  the  same  extent  as  the  Parliament  of 
the  mother  country  —  it  is  subject  always  to  the  ultimate  author- 
ity of  the  latter,  and  with  respect  to  certain  provisions  of  the 
constitution  of  the  Union  its  power  is  qualified. 


258  THE   GOVERNMENT    OF    GREAT   BRITAIN. 

As  in  Canada  and  Australia,  the  constitution  of  the  Union  is 
an  Act  of  Parliament  which  legally  may  be  changed  by  a  Parlia- 
mentary Act,  though  in  practice  any  change  without  the  consent 
of  the  Union  would  be  bitterly  opposed  as  in  the  like  case  in 
Canada  and  Australia. 

This  supremacy  of  the  Parliament  of  the  Union  has  been  gen- 
erally approved  "in  South  Africa  because  of  the  belief  in  the 
need  for  a  strong  central  government  to  meet  the  grave  questions 
confronting  it  An  interesting  feature  accompanying  the  con- 
summation of  union  in  South  Africa  was  the  abolition  of  the 
previous  governmental  institutions  of  the  colonies,  and  the  insti- 
tution by  the  Union  of  South  Africa  Act  of  a  new  frame  work,  of 
government  within  each  colony. 

The  Executive.  —  The  executive  power  is  vested  in  the 
King  and  may  be  exercised  by  the  King  in  person,  or  by  a 
Governor-General  as  his  representative,  who  shall  be  appointed 
by  the  King  and  hold  office  at  his  pleasure.  Subject  to  the  pro- 
visions of  the  Act,  the  Governor-General  shall  exercise  such 
powers  and  functions  as  may  be  assigned  him  by  the  King.  The 
salary  of  the  Governor-General  is  fixed  at  ten  thousand  pounds, 
and  shall  not  be  altered  during  his  continuance  in  office. 

Executive  Council.  —  The  Governor-General  is  to  be 
advised  by  an  Executive  Council,  the  members  of  which  shall  be 
appointed  and  summoned  by  him,  and  shall  hold  office  during  his 
pleasure.  The  real  executive  power  is  vested  in  the  Governor- 
General  in  Council,  which  means  the  Governor-General  acting 
with  the  advice  of  the  Executive  Council. 

The  Ministers.  —  Tke  number  of  ministers  is  by  the  Act 
set  at  ten,  who  are  appointed  by  the  Governor-General,  hold  office 
at  his  pleasure,  are  members  of  the  Executive  Council,  and  who 
administer  the  departments  of  state.  No  minister  shall  hold 
office  for  a  longer  period  than  three  months,  unless  he  is  or 
becomes  a  member  of  either  House  of  Parliament.  The  minis- 
tries established  are  those  of  Agriculture,  Interior,  Mines  and 
Defence,  Native  Affairs,  Education,  Finance,  Lands,  Public 
Works,  Posts  and  Telegraphs,  Railways  and  Harbors,  Justice^ 
and  Commerce  and  Industries.  A  minister  has  the  right  to  sit 


THE   GOVERNMENT    OF    GREAT    BRITAIN.  259 

and  speak  in  both  Houses,  but  may  vote  only  in  the  one  of  which 
he  is  a  member. 

All  powers,  authorities,  and  functions  which  had  previously 
been  exercised  by  the  executive  authorities  of  the  separate  col- 
onies were  conferred  upon  the  Governor-General  in  Council,  unless 
otherwise  provided  by  the  Act.  The  seat  of  the  executive  gov- 
ernment was  located  at  Pretoria.1 

The  Parliament.  —  The  legislative  power  of  the  Union 
was  vested  in  a  Parliament,  consisting  of  the  King,  a  Senate,  and 
a  House  of  Assembly.  The  Governor-General  may  appoint  such 
times  as  he  sees  fit  for  holding  the  sessions  of  Parliament,  and  he 
may  prorogue  Parliament  and  may  dissolve  both  Houses  simul- 
taneously, or  the  House  of  Assembly  alone.  But  the  Senate  may 
not  be  dissolved  within  a  period  of  ten  years  after  the  estab- 
lishment of  the  Union,  and  no  dissolution  of  the  Senate  shall 
affect  Senators  nominated  by  the  Governor-General  in  Council. 
Parliament  shall  meet  at  least  once  a  year. 

The  Senate.  —  For  ten  years  after  the  establishment  of 
the  Union  the  Senate  shall  be  composed  of  eight  Senators' nomi- 
nated by  the  Governor-General  in  Council,  and  for  each  province 
eight  Senators  shall  be  elected.  Half  of  the  Senators  appointed 
by  the  Governor-General  shall  be  selected  on  the  ground  of  their 
thorough  acquaintance  with  the  reasonable  wants  and  wishes  of 
the  colored  races  of  South  Africa.  The  elected  Senators  were 
chosen  before  the  date  of  union  by  the  two  Houses  of  the  Par- 
liament of  each  colony,  sitting  together  as  one  body  on  the  prin- 
ciple of  proportional  representation  with  a  single  transferable 
vote,  and  presided  over  by  the  Speaker  of  the  Legislative  Assem- 
bly. The  term  of  Senators  is  ten  years,  and  vacancies  among 
the  appointed  Senators  shall  be  filled  by  the  Governor-General  in 
Council,  and  among  the  elected  Senators  by  the  Provincial  Coun- 
cil of  the  Province  from  which  such  Senator  had  been  chosen. 
Parliament  may  provide  for  the  manner  in  which  the  Senate 

1  The  local  rivalries  of  the  colonies  led  to  the  unique  arrangement  of  locat- 
ing the  three  departments  of  government  in  three  different  places  —  the 
executive  in  Pretoria,  the  legislative  in  Cape  'Town  and  the  judicial  in 
Bloemfontein. 


260  THE    GOVERNMENT    OF    GREAT    BRITAIN. 

shall  be  constituted  after  the  expiration  of  ten  years,  but  until 
otherwise  determined,  the  provisions  respecting  appointed  Sena- 
tors shall  continue  in  force ;  the  elected  Senators  shall  be  chosen 
by  the  Provincial  Council  and  the  House  of  Assembly  in  each 
Province,  and  shall  hold  office  for  ten  years  unless  the  Senate  be 
sooner  dissolved.  • 

Qualifications  of  Senators.  —  A  Senator  must  be  not  less 
than  thirty  years  of  age,  must  be  qualified  to  be  registered  as  a 
voter  for  the  election  of  members  of  the  House  of  Assembly  of 
one  of  the  provinces,  must  have  resided  for  five  years  within  the 
limits  of  the  Union  at  the  time  when  he  is  elected  or  appointed, 
must  be  a  British  subject  of  European  descent,  and  in  the  case  of 
an  elected  Senator  must  be  the  registered  owner  of  immovable 
property  within  the  Union  of  the  value  of  not  less  than  five 
hundred  pounds  over  and  above  any  special  mortgages  thereon. 

House  of  Assembly. — Membership  in  the  House  of 
Assembly  rests  upon  election  by  the  voters  of  the  Union,  and 
members  were  allotted  to  the  provinces  as  follows :  Cape  of 
Good  Hope,  51;  Natal,  17;  Transvaal,  36;  Orange  Free  State, 
17.  The  number  is  subject  to  increase  upon  the  basis  of  the 
census  taken  every  five  years  beginning  in  1911,  until  it  reaches 
one  hundred  and  fifty,  but  until  that  number  is  reached,  or  until 
a  period  of  ten  years  has  elapsed  after  the  establishment  of  the 
Union,  the  number  of  representatives  of  any  of  the  four  original 
provinces  may  not  be  decreased.  Thereafter,  however,  the  rep- 
resentation shall  be  based  upon  the  European  male  adults.  Qual- 
ifications of  electors  shall  be  determined  by  Parliament,  with  the 
exception  that  no  law  shall  disqualify  any  person  in  the  province 
of  the  Cape  of  G-ood  Hope,  qualified  by  its  laws,  by  reason  of 
race  or  color  only,  unless  the  bill  be  passed  by  both  Houses  of 
Parliament  sitting  together  and  be  agreed  to  by  not  less  than 
two-thirds  of  the  total  number  of  members  of  both  Houses,  and 
no  registered  voter  shall  be  removed  from  the  register  solely  by 
reason  of  race  or  color.  These  exceptions  were  for  the  protec- 
tion of  the  black  voters  of  the  Cape  Colony. 

The  qualifications  for  members  of  the  House  of  Assembly  are 
the  same  as  those  for  the  Senate,  except  for  the  age  and  property 
requirements. 


THE    GOVERNMENT    <>F    (JKKAT    HIM  TAIN.  261 

The  House  of  Assembly  shall,  unless  sooner  dissolved  by  the 
Governor-General,  continue  for  five  years  from  the  date  of  first 
meeting,  but  no  longer. 

Powers  of  Parliament.  —  Parliament  has  the  supreme 
legislative  authority  for  the  Union,  and  it  is  its  duty  to  make 
laws  for  the  peace,  order,  and  good  government  of  the  Union. 
The  two  Houses  do  not,  however,  stand  upon  an  equal  footing 
in  the  matter  of  legislation.  All  bills  appropriating  money  or 
raising  revenue  must  originate  in  the  House  of  Assembly,  and 
may  not  be  amended  so  far  as  they  are  for  the  services  of  the 
government,  and  may  not  increase  any  proposed  burden  or 
charges  upon  the  people.  The  House  may  not  appropriate 
money  unless  such  appropriation  has  been  recommended  by 
message  from  the  Governor-General  in  the  same  session. 

If  the  Senate  fails  to  pass  any  bill  passed  by  the  House  and 
if  the  bill  is  passed  by  the  House  in  the  next  session,  the  Gov- 
ernor-General may  during  that  session  convene  a  joint  session 
of  the  two  Houses,  and  -the  bill,  if  passed  by  a  majority  of  the 
Houses  in  joint  session,  shall  become  a  law.  In  the  case  of 
money  bills  the  Governor-General  may  convene  the  joint  sitting 
during  the  same  session. 

Bills  must  be  presented  to  the  Governor-General,  who  may 
declare  that  he  assents  in  the  King's  name,  or  that  he  withholds 
assent,  or  that  he  reserves  the  bill  for  the  signification  of  the 
King's  assent.  Bills  touching  the  House  of  Assembly,  abolish- 
ing provincial  councils,  or  abridging  the  powers  conferred  by  the 
Act  of  Union  upon  provincial  councils,  must  be  reserved. 

The  King  may  within  one  year  disallow  any  bill  to  which 
the  Governor-General  has  given  assent,  and  bills  reserved  for  the 
King's  pleasure  shall  have  no  force  unless  within  a  year  the 
Governor-General  shall  make  known  to  each  of  the  Houses  or  by 
proclamation  that  the  King's  assent  has  been  given. 

The  Provinces.  —  The  executive  power  in  each  of  the 
provinces  is  in  the  hands  of  an  administrator,  appointed  by  the 
Governor-General  in  council,  who  shall  hold  office  for  five  years 
and  who  shall  not  be  removed  except  by  the  Governor-General 
for  cause  assigned.  The  legislative  power  in  the  provinces  is 
vested  in  an  elective  council  which  meets  annually  and  shall  con- 


262  THE   GOVERNMENT   OF   GREAT   BRITAIN. 

tinue  for  three  years  from  the  date  of  its  first  meeting.  The 
administrator  may  prorogue  but  may  not  dissolve  the  council. 
Each  provincial  council  chooses  an  executive  committee  of  four 
members,  from  among  its  members  or  otherwise,  who,  together 
with  the  administrator,  shall  carry  on  the  administration  of  pro- 
vincial affairs.  The  powers  of  the  provincial  council  are  defined 
by  the  Act  of  Union,  and  may  be  said  broadly  to  deal  with  the 
local  affairs  of  the  province,  and  any  ordinance  made  by  a  pro- 
vincial council  shall  have  effect  as  long  and  as  far  only  as  it  is  not 
repugnant  to  any  Act  of  Parliament. 

The  Crown  Colonies.  —  All  those  colonies  which  have 
not  responsible  self-government  are  classed  as  Crown  colonies, 
colonies  more  or  less  completely  directed  by  the  Colonial  Office 
in  London.  They  range  in  organization  all  the  way  from  mere 
military  administrations,  such  as  have  been  established  in  St. 
Helena  and  Gibraltar,  through  those  which,  like  Trinidad  and 
the  Straits  Settlements,  have  both  a  nominated  Executive  and  a 
nominated  Legislative  Council,  and  those  like  Jamaica,  whose 
nominated  Executive  is  associated  with  a  Legislative  Council  in 
part  elected,  to  those  like  the  Bahamas  and  Bermuda,  in  which 
the  Councils  are  altogether  elected,  but  which  have  no  respon- 
sible ministry. 

Powers  of  Colonial  Governors.  —  It  is  interesting  to  have 
the  testimony  of  one  of  the  most  capable  and  eminent  of  English 
colonial  administrators  as  to  the  relative  desirability  of  the  post 
of  governor  in  a  colony  in  which  he  is  governor  indeed,  with  no 
ministers  empowered  to  force  their  advice  upon  him,  and  in  a 
colony  where  he  must  play  the  unobtrusive  part  of  constitutional 
monarch.  Lord  Elgin  says  with  great  confidence,  in  his  Letters, 
that  his  position  as  governor  of  Canada  was  a  position  of  greater 
official  power  than  his  position,  previously  held,  as  governor  of 
Jamaica.  He  declares  his  unhesitating  belief  that  there  is  "  more 
room  for  the  exercise  of  influence  on  the  part  of  the  governor " 
in  such  a  colony  as  Canada,  where  he  must  keep  in  the  back- 
ground, and  scrupulously  heed  his  ministers,  than  under  any  other 
arrangement  that  ever  was  before  devised,  although  his  influence 
there  is  of  course  "  wholly  moral  —  an  influence  of  suasion,  sym- 
pathy, and  moderation,  which  softens  the  temper  while  it  ele- 


THE   GOVERNMENT   OF   GREAT   BRITAIN.  263 

vates  the  aims  of  local  politics."1  This  is  but  another  way 
of  stating  the  unquestionable  truth  that  it  is  easier,  as  well 
as  wiser,  to  govern  with  the  consent  and  cooperation  of  the 
governed  than  without  it,  —  easier  to  rule  as  a  friend  than  as 
a  master. 

India.  —  India  stands  in  matters  of  government,  as  in  so 
many  other  respects,  entirely  apart  from  the  rest  of  the  British 
Empire.2  It  is  governed,  through  the  instrumentality  of  its 
Governor-General  and  his  Council,  directly  from  London  by  a 
member  of  the  Cabinet,  the  Secretary  of  State  for  India.  The 
Secretary  of  State  is  assisted  by  a  Council  of  ten  or  more  mem- 
bers appointed  by  the  Crown  from  among  persons  who  have 
resided  or  served  in  India.  Acting  under  the  Secretary  of  State 
and  his  Council  in  London,  there  is  the  Governor-General  of 
India,  who  is  also  assisted  by  a  Council  of  from  five  to  six  mem- 
bers, appointed  by  the  Crown,  —  a  Council  which  is  first  of  all 
administrative,  but  which,  when  ree'nforced  by  additional  members 
nominated  by  the  Governor-General  or  elected  under  the  Indian 
Councils  Act  of  1909,  has  also  the  functions  of  a  legislative 
council. 

The  work  of  the  Governor-General's  Council  is  divided  among 
ten  departments,  one  of  which,  that  of  foreign  affairs,  is  generally 
kept  in  the  hands  of  the  Governor-General  himself.  These  de- 
partments do  not  constitute  a  ministry ;  they  are  regarded  simply 
as  committees  of  the  Council. 

The  sessions  of  the  legislative  council  are  held  always  in  public. 
The  number  of  members  is  68,  of  whom  36  are  official  and  32 
are  non-official,  which  secures  to  the  government  the  control  of 
the  action  of  the  council.  Special  provision  is  made  for  repre- 
sentation of  the  Mohammedan  part  of  the  population.  The  legis- 
lative council  makes  laws,  subject  to  some  restrictions,  for  all 
persons  in  British  India,  for  all  British  subjects  in  native  states, 
and  for  all  native  Indian  subjects  in  any  part  of  the  world. 

Not  all  of  India  is  directly  administered  by  the  English 
government.  There  are  numerous  native  states  which  act  with 

1  Letters  and  Journals  of  Lord  Elgin,  ed.  by  Theodore  Walrond,  London, 
1872,  p.  126. 

2  The  Government  of  India  Act,  1915,  as  amended  by  a  like  Act  in  1916. 


264  THE   GOVERNMENT    OF    GREAT   BRITAIN. 

substantial  independence  in  local  affairs,  though  under  English 
overlordship  and  control.  Such  part  of  the  vast  territory  as 
is  administered  directly  by  English  officials  is  divided  into 
fifteen  provinces,  of  which  the  chief  in  importance  are  under 
governors  who  are  appointed  by  the  Crown  and  are  assisted, 
as  the  Governor-General  is,  by  two  councils,  administrative  and 
legislative.  Lieutenant-Governors,  appointed  by  the  Governor- 
General,  and  assisted  by  similar  councils,  preside  over  the 
provinces  next  in  importance.  The  Commissioners  or  agents 
of  the  other  provinces,  who  are  also  appointed  by  the  Governor- 
General,  also  have  their  councils.  In  all  provincial  legislative 
councils  the  majority  is  elected. 

There  has  been  a  growing  demand  in  India  for  a  larger  partici- 
pation on  the  part  of  Indians  in  the  government  of  India,  and, 
among  a  few,  a  feeling  of  nationality. 

In  1885  there  was  held  the  first  Indian  national  Congress,  and 
in  the  succeeding  Congresses  there  has  been  a  considerable  agita- 
tion in  favor  of  throwing  off  British  rule  and  of  establishing  a 
national  Indian  state.  The  nationalists  are  Hindus,  and  the  in- 
terests of  the  Moslem  part  of  the  population  were  not  cared  for 
by  their  program.  In  1906  the  All-India  Moslem  League  was 
founded  on  the  basis  of  complete  loyalty  to  the  Crown. 

The  war  has  produced  profound  changes  in  the  situation.  The 
princes  have  contributed  largely  of  men  and  money  to  aid  in  its 
prosecution,  and  thousands  of  Indians  have  been  organized  into 
labor  units  for  work  in  various  parts  of  the  world. 

The  Government  of  India  Act  of  1915  confers  a  larger  partici- 
pation in  affairs  of  the  government  upon  native  Indians,  and 
Indians  may  now  become  officers  in  the  British  army.  India  also 
is  represented  in  the  Imperial  War  Conference. 

The  policy  of  the  present  British  government  toward  India  was 
stated  by  the  Secretary  of  State  for  India  in  the  House  of  Com- 
mons on  August  20,  1917,  as  follows :  "  The  policy  of  His  Maj- 
esty's government  ...  is  that  of  the  increasing  association  of 
Indians  in  every  branch  of  the  administration,  and  the  gradual 
development  of  self-governing  institutions,  with  a  view  to  the 
progressive  realization  of  responsible  government  in  India  as  an 
integral  part  of  the  British  Empire." 


THE   GOVERNMENT   OP   GREAT   BRITAIN.  265 

Greater  Britain.  —  Greater  Britain,  the  world  of  English 
colonies,  differs  very  materially  from  Greater  Greece,  the  wide- 
spread Hellas  of  the  ancient  world.  Hellas  was  disintegrate: 
the  Greeks  carried  with  them,  as  of  course,  Greek  institutions, 
but  only  to  allow  those  institutions  wide  differentiation.  In  no 
way  did  Greek  settlement  signify  race  integration  or  a  national 
nexus  of  rule.  Englishmen,  on  the  contrary,  in  English  colonies, 
maintain  a  homogeneity  and  integration  both  of  race  and  of  in- 
stitutions which  have  drawn  the  four  parts  of  the  world  together 
under  common  influences,  if  they  have  not  compacted  them  for 
a  common  destiny.  Throughout  Europe  reformers  have  copied 
English  political  arrangements ;  the  colonists  have  not  copied 
them,  they  have  extended  and  are  perpetuating  and  perfecting 
them. 

Imperial  Unity  or  Federation.  —  For  the  past  fifteen 
years  there  has  been  much  discussion  of  the  future  relations  of 
the  Dominions  to  the  mother  country  and  the  means  by  which 
they  might  be  drawn  closer  together.  The  Dominions  felt  a  grow- 
ing desire  to  participate  actively  in  the  decision  of  questions 
affecting  imperial  interests,  particularly  in  view  of  the  contribu- 
tions they  were  making  to  the  Imperial  defence,  but  nothing 
beyond  Colonial  and  Imperial  Conferences  had  been  achieved. 
At  the  outbreak  of  the  war  the  Dominions  responded  instantly  to 
the  need  of  the  mother  country,  and  their  efforts  in  the  war  have 
been  worthy  of  the  best  traditions  of  Englishmen.  The  war  has 
shown  them  their  need  of  defence  by  the  United  Kingdom,  and 
the  latter  has  received  with  gratitude  the  assistance  so  loyally 
given. 

On  the  part  of  the  United  Kingdom  there  has  been  practical 
acknowledgment  of  the  need  to  draw  the  mother  country  and  the 
Dominions  into  closer  relations  and  a  participation  by  the  latter 
in  the  decisions  affecting  Imperial  questions.  A  War  Conference 
was  summoned  in  1917  to  which  the  Premiers  of  the  Dominions 
were  invited,  and  all  sent  representatives  with  the  exception  of 
Australia.  In  1916  the  visiting  Premiers  had  been  asked  to  sit 
at  special  meetings  of  the  general  Cabinet  Council,  but  in  1917 
Lloyd  George  went  further  and  took  the  Premiers  into  the  inner 
War  Cabinet  of  five  members  which  he  had  constituted  upon 


266  THE   GOVERNMENT    OF   GREAT   BRITAIN. 

assuming  the  position  of  Prime  Minister.  It  was  decided  to  hold 
meetings  annually,  or  oftener  if  need  be,  "  to  discuss  foreign 
affairs  and  other  subjects  of  Imperial  policy."  The  Imperial 
Cabinet  for  the  future  should  consist  of  the  Prime  Minister  of 
the  United  Kingdom  and  such  of  his  colleagues  as  dealt  specially 
with  Imperial  affairs,  the  Prime  Minister  of  each  of  the  Domin- 
ions or  a  special  representative  clothed  with  equal  authority,  and 
a  representative  of  the  Indian  people  appointed  by  the  govern- 
ment of  India. 

What  shape  the  closer  relation  between  the  United  Kingdom 
and  the  Dominions  should  take  was  left  for  determination  after 
the  War. 

REPRESENTATIVE  AUTHORITIES. 

Anson,  Wm.  R.,  The  Law  and  Custom   of   the   Constitution,   3   vols., 

4th  ed.,  Oxford,  1907-1909. 
Bagehot,    Walter,    The    English    Constitution,    London,     1867;    N.Y., 

1882. 
Bourinot,  John   G.,  Federal  Government  in   Canada   (Johns   Hopkins 

Univ.    Studies    in    Historical    and    Political    Science),    Baltimore, 

1889 ;  and  Parliamentary  Procedure  and  Practice  in  the  Dominion 

of  Canada,  4th  ed.,  Toronto,  1916. 
Boutmy,  Emile,  The  English  Constitution,  trans,  out  of  the  French  by 

Isabel  M.  Eaden  •  and   Studies  in   Constitutional  Law,  trans,  by 

E.  M.  Dicey.     Both,  London,  1891. 

Brand,  R.  H.,  The  Union  of  South  Africa,  Oxford,  1909. 
Burgess,    J.    W.,    Political    Science    and   Constitutional    Law,   2    vols., 

Boston,  1890. 

Cameron,  E.  R.,  The  Canadian  Constitution,  Winnipeg,  1915. 
Clark,  W.  Inglis,  Australian  Constitutional  Law,  Melbourne,  1901. 
Clement,  The  Law  of  the  Canadian  Constitution,  3d  ed.,  Toronto,  1916. 
Golden   Club  Essays,   1 882 :   Local  Government   and   Taxation  in  the 

United  Kingdom.-    London. 
Dicey,  A.  V.,  The  Privy  Council,  London,  1887 ;  and  The  Law  of  the 

Constitution,  8th  ed.,  London,  1915. 

Dilke,  Sir  C.  W.,  Problems  of  Greater  Britain,  London,  1890. 
Dupriez,  L.,  Les  Ministres  dans  les  principaux  Pays  d'Europe  et  d'Ame"- 

rique,  2  vols.,  Paris,  1892. 
Egerton    and    Grant,   Canadian    Constitutional    Development,   London, 

1907. 
Egerton,  Confederations  and  Unions. 


THE   GOVERNMENT    OF   GREAT    BRITAIN.  266  a 

English  Citizen  Series :  II.  D.  Traill,  Central  Government. 

M.  D.  Chalmers,  Local  Government. 

F.  W.  Maitland,  Justice  and  Police. 

S.  Walpole,  The  Electorate  and  the  Legislature. 

T.  W.  Fowle,  The  Poor  Law. 
Gneist,  R.,  History  of   the  English  Constitution,  2  vols.,  N.Y.,  1886 ; 

Student's   History  of   the   English  Parliament,   N.Y.,   1887;  Self- 
government,    Communalverfassung    und    Verwaltungsgerichte,    3d 

ed.,  Berlin,  1871 ;  Das  Englische  Verwaltungsrecht  der  Gegenwart 

in  Vergleichung  mit  dem  deutschen  Verwaltungswesen,   3d   ed., 

2  vols.,  1883-1884. 
Goodnow,  F.  J.,  Comparative  Administrative  Law,  2  vols.,  New  York, 

1893. 

Hallam,  H.,  Constitutional  History  of  England,  2  vols.,  N.Y.,  1880. 
II,  nm,  \V.  E.,  The  Government  of  England,  2d  ed.,  London,  1887. 
llbert,  Courtenay,  Parliament,  N.Y.,  1911. 
Imperial  Parliament    Series:   Local    Administration,   by    \V.   Rathbone, 

A.  Pell  and  F.  C.  Montague,  London,  1885. 
K<  ith,  A.  B.,  Responsible  Government  in  the  Dominions,  3  vols.,  Oxford, 

1912 ;  and  Imperial  Unity  and  the  Dominions,  Oxford,  1916. 
Lefroy,  A.  H.  F.,  Canada's  Federal  System,  Toronto,  1913. 
Low,  Sydney,  The  Government  of  England,  Rev.  ed.,  London,  1914. 
Lowell,  A.  L.,  The  Government  of  England. 
Macy,  Jesse,  The  English  Constitution,  London  and  N.Y.,  1907. 

/,  Sir  T.  E.,  Constitutional  History  of  England,  3  vols.,  N.Y.,  1912. 
ij  C.  H.,  The  High  Court  of  Parliament,  Yale  University  Press, 

1910. 
Moore,  W.  H.,  The  Constitution  of  the  Commonwealth  of  Australia, 

London,  1902. 
Mnnro,  J.  E.   C.,  The  Constitution  of  Canada,   Cambridge  University 

Press,  1889. 

Mnnro,  W.  B.,  The  Government  of  European  Cities,  N.Y.,  1909. 
Ogg,  F.  A.,  The  Governments  of  Europe,  N.Y.,  1913. 
Quick  and  Garran,  Constitution  of  the  Commonwealth  of  Australia. 
Redlick  and  Hirst,  Local  Government  in  England,  3  vols.,  London,  1903. 
Riddell,  W.  R.,  The  Constitution  of  Canada  in  its  History  and  Practical 

Working,  Yale  University  Press,  1917. 

Shaw,  Albert,  Municipal  Government  in  Great  Britain,  N.Y.,  1895. 
Stubbs,   William,   Constitutional   History  of  England,  3  vols.,  Oxford, 

1883. 
Taswell-Langmead,    L.,    English    Constitutional    History,    London   and 

Boston,  3d  ed.,  1886. 

I 


266  b  THE   GOVERNMENT   OF   GREAT   BRITAIN. 


Taylor,  Hannis,  The  Origin  and  Growth  of  the  English  Constitution, 
2  vols.,  Boston,  1889  and  1898. 

Todd,  Alpheus,  Parliamentary  Government  in  England,  new  ed.,  Lon- 
don and  N.Y.,  1888-1889 ;  and  Parliamentary  Government  in  the 
British  Colonies,  2d  ed.,  London,  1894. 
Local  Government  Reforms : 

Baker,  Charles  E.,  The  Local  Government  Act,  1888,  with  Notes  and 
Index,  London,  1888. 

Jenks,  Edward,   An   Outline   of   English   Local   Government,  London, 
1894. 

Ryde,  Walter  C.,  TheXocal  Government  Act,  1894,  London,  1894. 


X. 

THE  GOVERNMENT  OF  THE  UNITED  STATES. 


The  English  Occupation  of  America.  —  The  political  in- 
stitutions of  the  United  States  are  in  the  main  the  political  insti- 
tutions of  England,  transplanted  by  English  colonists  to  a  new 
soil  and  worked  out  through  a  fresh  development  to  new  and 
characteristic  forms.  Though  they  now  show  so  large  an  ad- 
mixture of  foreign  blood,- the  main  stock  of  the  people  of  the 
United  States  is  still  of  British  extraction.  For  several  genera- 
tions the  settlements  of  New  England  and  the  South  contained 
scarcely  any  other  element.  In  the  North,  in  what  is  now 
Canada,  and  at  the  mouth  of  the  Mississippi,  there  were  French 
settlements ;  in  Florida  there  were  colonists  from  Spain ;  the 
Dutch  had  settled  upon  the  Hudson  and  held  the  great  port  at 
its  mouth;  and  the  Swedes  had  established  themselves  on  the 
Delaware:  all  along  the  coast  there  was  rivalry  between  the 
western  nations  of  Europe  for  the  possession  of  the  new  conti- 
nent. But  by  steady  and  for  the  most  part  easy  steps  of  aggres- 
sion the  English  extended  their  domain  and  won  the  best  regions 
of  the  great  coast.  New  England,  Virginia,  and  the  Carolinas 
were  never  seriously  disputed  against  them;  and,  these  once 
securely  taken  possession  of,  the  intervening  foreigner  was 
soon  thrust  out:  so  that  the  English  power  had  presently  a 
compact  and  centered  mass  which  could  not  be  dislodged,  and 
whose  ultimate  expansion  over  the  whole  continent  it  proved  im- 
possible to  stay.  England  was  not  long  in  widening  her  colo- 
nial borders.  The  French  power  was  crushed  out  in  the  North, 
the  Spanish  power  was  limited  in  the  South,  and  the  colonies  had 
only  to  become  free  to  develop  energy  more  than  sufficient  to 

267 


268          THE   GOVERNMENT   OF   THE   UNITED   STATES. 

• 

make  all  the  most  competed-for  portions  of  the  continent  thor- 
oughly English,  —  thoroughly  Anglo-American. 

Adaptation  of  English  Institutions.  —  This  growth  of  the 
English  power  in  America  involved  a  corresponding  expansion  of 
English  institutions.  As  America  became  English,  English  institu' 
tions  in  the  colonies  became  American.  They  adapted  themselves 
to  the  new  conditions  and  the  new  conveniences  of  political  life 
in  separate  colonies,  —  colonies  struggling  at  first,  then  expanding, 
at  last  triumphing ;  and  without  losing  their  English  character 
gained  an  American  form  and  flavor.  Some  institutions  set  up  in 
New  England  the  men  who  formed  Plymouth  had  doubtless 
learned  to  know  and  to  like  while  they  were  exiles  in  Holland ; 
but  they  brought  nothing  with  them  that  was  not  suitable  to 
English  habit. 

It  would  be  misleading  to  say  that  the  English  planted 
states  in  America.  They  planted  small  isolated  settlements,  and 
these  settlements  grew  in  their  own  way  to  be  states.  The  slow 
process  was  from  local,  through  state,  to  national  organization. 
And  not  everywhere  among  the  English  on  the  new  continent  was 
the  form  of  local  government  at  first  adopted  the  same :  there  was 
no  invariable  pattern,  but  everywhere,  on  the  contrary,  a  sponta- 
neous adjustment  of  political  means  to  place  and  circumstance. 
By  all  the  settlements  alike  English  precedent  was  followed,  but 
not  the  same  English  precedent.  Each  colony,  with  the  true  Eng- 
lish sagacity  of  practical  habit,  borrowed.what  was  best  suited  to 
its  own  situation,  and  originated  what  it  could  not  borrow.  New 
England  had  one  system,  Virginia  another,  New  Jersey  and  Penn- 
sylvania still  a  third,  compounded  after  a  sort  of  the  other  two. 

The  New  England  Colonies.  —  In  New  England  the  centre 
of  government  was  always  the  town,  with  its  church  and  school- 
house  and  its  neighborly  cluster  of  houses  gathered  about  these. 
The  soil  on  the  coast  where  the  first  settlers  established  themselves 
was  shallow  and  slow  to  yield  returns  even  to  hard  and  assiduous 
toil ;  the  climate  was  rigorous,  with  its  long  winters  and  bleak 
coast  winds ;  every  circumstance  invited  to  close  settlement  and 
trade,  to  the  intimate  relationships  of  commerce  and  the  advent- 
ures of  sea-faring  rather  than  to  the  wide-spreading  settlements 
characteristic  of  an  agricultural  population. 


THE   GOVERNMENT   OF  THE   UNITED   STATES.  269 

The  first  New  Euglanders,  moreover,  were  most  of  them 
religious  refugees.  They  had  left  the  Old  World  to  escape  the 
Old  World's  persecutions  and  in  order  to  find  independence  of 
worship ;  they  were  establishing  a  church  as  well  as  a  community ; 
they  acted  as  organized  congregations ;  their  life  was  both  spiritu- 
ally and  temporally  organic.  Close  geographical  association, 
therefore,  such  as  was  virtually  forced  upon  them  by  the  con- 
ditions of  livelihood  by  which  they  found  themselves  constrained, 
accorded  well  with  their  higher  social  purposes.  The  church 
could  be  made,  by  such  association,  the  vital  nerve-centre  of  their 
union :  the  minister  was  the  ruling  head  of  the  community,  and 
church  membership  was  in  several  of  the  settlements  recognized 
as  identical  with  citizenship. 

The  Separate  Towns.  —  The  several  parts  of  the  New 
England  coast  were  settled  by  independent  groups  of  settlers. 
There  was  the  Plymouth  colony  at  Plymouth,  aiid  altogether 
distinct  from  it,  the  Massachusetts  Bay  colony  at  Salem  and 
Charlestown  and  Boston.  To  the  south  of  these,  founded  by 
men  dissatisfied  with  the  Massachusetts  government,  were  Ports- 
mouth, Newport,  and  Providence,  in  what  is  now  Rhode  Island. 
On  the  Connecticut  river  other  wanderers  from  Massachusetts 
built  Hartford  and  Windsor  and  Wethersfield.  Saybrook,  at  the 
mouth  of  the  Connecticut  river,  was  settled  direct  from  England ; 
so  also  was  the  colony  of  New  Haven,  on  the  coast  of  Long  Island 
Sound  west  of  the  Connecticut.  From  year  to  year  the  planting 
of  towns  went  diligently  on :  almost  every  town  became  the  pro- 
lific mother  of  towns,  which  either  sprang  up  close  about  it  and 
retained  a  sort  of  dependence  upon  it,  or,  planted  at  a  distance, 
ventured  upon  an  entirely  separate  life  in  the  wilderness. 

Union  of  the  Towns.  —  Gradually  the  towns  of  each 
of  the  general  regions  mentioned  drew  together  into  the  colonies 
known  to  later  times,  the  colonies  which  were  to  form  the  Union. 
Plymouth  merged  in  Massachusetts ;  Portsmouth,  Newport,  and 
Providence  became  but  parts  of  Rhode  Island ;  New  Haven  was 
joined  to  Connecticut.  But  at  first  these  larger  colonies  were 
scarcely  more  than  town  leagues.  It  sometimes  happened  that 
each  town  retained  unaltered  its  separate  organization  and  its  vir- 


270  THE   GOVERNMENT   OF   THE  UNITED   STATES. 

tual  independence  in  the  regulation  of  its  own  local  affairs.  In 
Rhode  Island,  particularly,  their  jealousy  of  each  other  and  their 
reluctance  to  expose  themselves  to  anything  like  a  loss  of  perfect 
autonomy  long  kept  the  common  government  which  they  most  of 
the  time  maintained  at  a  balance  between  union  and  dissolution. 
In  the  other  New  England  colonies  the  same  influences  manifested 
themselves,  though  in  a  less  degree.  The  town  system  which 
everywhere  prevailed  was  by  its  nature  an  extremely  decentralized 
form'  of  government :  government,  so  to  say,  came  to  a  separate 
head  in  each  locality :  and  the  chief  vitality  was  in  the  self-gov- 
erning units  of  each  group  rather  than  in  the  bonds  which  con- 
nected them  with  each  other. 

Forms  of  Town  Government.  —  The  form  of  town  govern- 
ment was  everywhere  such  as  it  was  quite  natural  that  Englishmen 
should  have  set  up.  The  names  of  the  town  officers  were  borrowed 
from  the  borough  governments  at  home,  and  their  duties  were,  as 
nearly  as  circumstances  permitted,  the  same  as  the  duties  of  the 
officers  whose  names  they  bore.  The  New  England  town  was,  at 
the  same  time,  in  many  of  its  most  important  and  characteristic 
features,  rather  a  reversion  to  older  types  of  government  than  a 
transplanted  cutting  of  the  towns  which  the  settlers  had  left 
behind  them  in  the  England  of  the  seventeenth  century.  There 
was  in  it  none  of  the  elaborated  class  privilege  that  narrowed  the 
town  governments  of  the  England  of  that  time.  All  the  towns- 
men met  in  town-meeting  and  there  elected  their  officers :  those 
officers  were  responsible  to  them  and  always  rendered  careful 
account  of  their  actions  to  the  body  which  elected  them.  Gen- 
erally the  most  important  of  these  officers  were  called  Selectmen, 
—  men  selected  by  the  town-meeting  to  carry  on  the  necessary 
public  business  of  the  community,  —  and  these  Selectmen  stood  in 
the  closest  relations  of  counsel  and  responsibility  to  the  town- 
meeting.  In  the  earliest  times  the  franchise  was  restricted,  in 
Massachusetts  and  New  Haven  at  least,  to  those  who  were  church 
members,  and  many  were  excluded  by  this  rule  from  participation 
in  the  government ;  but  even  under  such  circumstances  there  was 
real  and  effective  self-government.  The  towns  lacked  neither 
vitality  nor  energy,  for  they  did  not  lack  liberty.  In  the  late 
days  when  great  cities  grew  up,  the  simple  township  system  had 


THE   GOVERNMENT   OF    THE   UNITED    STATES.  271 

• 

to  be  abandoned  in  part;  as  the  colonies  expanded,  too,  they 
gained  in  energy  and  vitality  as  wholes,  and  their  component 
parts,  the  towns,  fell  by  degrees  to  a  place  of  less  exclusive  im- 
portance in  colonial  affairs ;  but  this  basis  of  the  township  was 
never  lost  and  has  remained  to  the  present  day  the  foundation  of 
local  government  in  New  England. 

Colonial  Organization.  —  As  the  towns  came  together 
into  the  groupings  which  constituted  the  later  colonies  other  areas 
of  government  naturally  came  into  use.  Townships  were,  for 
judicial  purposes,  combined  into  counties,  and  by  various  other 
means  of  organization  a  new  nexus  was  given  to  the  several  parts 
of  the  now  extended  state.  From  the  first  the  colonists  had  their 
'general  courts,'  their  central  legislative  assemblies  representa- 
tive of  the  freemen.  To  these  assemblies  went  delegates  from 
the  several  towns  comprised  in  the  colony.  As  the  colonies  grew, 
their  growth  but  strengthened  their  assemblies:  it  was  in  the 
common  ruling  function  of  these  that  the  union  of  the  several 
parts  of  each  colony  was  made  real  and  lasting. 

The  sheriffs  of  the  counties  of  colonial  Massachusetts  were  ap- 
pointed by  the  Governor.  The  development  of  the  county  organization 
brought  into  existence,  too,  Justices  of  the  Peace  who  met  in  Quarter  Ses- 
sions, afterwards  called  *  General  Sessions,'  and  who  were  the  general 
county  authority  quite  after  the  fashion  of  the  mother  country.1 

The  Southern  Colonies.  —  To  this  picture  of  the  political 
institutions  of  colonial  New  England  political  and  social  organi- 
zation in  the  Southern  colonies  offered  many  broad  contrasts. 
The  settlers  in  Virginia  were  not  religious  refugees :  they  had 
come  out  for  a  separate  adventure  in  political,  or  rather  in  social, 
organization,  but  not  for  a  separate  venture  in  religion ;  and  the 
coast  they  happened  upon,  instead  of  being  rugged  and  bleak,  was 
low  and  fertile,  with  a  kindly  climate,  deep  rivers,  broad  stretches 
of  inviting  country,  and  a  generous  readiness  to  yield  its  fruits  in 
their  season.  They  had  been  sent  out  by  a  Company  (the  <  Vir- 
ginia Company '  it  was  called)  in  England,  to  which  the  Virginia 
territory  had  been  granted  by  the  Crown,  and  they  had  no  thought 

1  See  Town  and  County  Government  in  the  English  Colonies  of  North 
America,  by  Edward  Channing,  Johns  Hopkins  University  Studies  in  His- 
torical and  Political  Science,  2d  Series,  pp.  40-42. 


272  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

but  to  live  under  the  governors  whom  the  Company  had  placed 
over  them.  They  founded  Jamestown  some  hundred  miles 
above  the  mouth  of  the  James  river  ;  but  Jamestown  was  in  no 
way  like  the  New  England  towns,  and  it  soon  became  evident 
that  town  life  was  not  to  be  the  characteristic  habit  of  the  colony. 
The  rich  soil  invited  to  agriculture,  the  numerous  rivers,  full  and 
deep,  stood  ready  to  serve  as  natural  highways,  and  as  the  popu- 
lation of  the  colony  increased  it  spread  far  and  wide  along  the 
courses  of  the  rivers. 

Contrasts  of  Character.  —  There  was  much  more,  besides 
soil  and  climate  and  the  differing  conditions  of  settlement,  that 
made  the  Southern  colonies  unlike  the  colonies  of  New  England. 
The  New  Englanders  came  for  the  most  part  out  of  the  town  and 
village  population  of  the  mother  country :  out  of  a  very  distinctly 
marked  middle  class  with  common  motives  and  ideals :  the 
more  distinctly  marked  because  most  of  them  had  had  the  same 
experiences  and  were  of  the  same  way  of  thinking  in  matters  of 
religion.  They  naturally  drew  together  for  the  sort  of  life  they 
had  left  behind  them  over  sea.  The  settlers  of  the  Southern 
colonies,  on  the  contrary,  came  from  no  single  class  and  had  no 
common  habit,  —  except  the  general  habit  of  the  English  race. 
They  had  been  taken  by  fortune,  as  if  at  haphazard,  out  of  the 
general  mass  of  Englishmen  at  home,  some  gentle,  some  common, 
some  bred  to  comfort,  some  not,  all  bent  upon  an  independent 
life  and  carrying  in  their  purpose  the  general  ideals  of  their  race. 
Prominent  among  these  ideals,  no  doubt,  was  this,  that  a  gentle- 
man must  live  with  space  of  good  acres  about  him,  a  lord  of  the 
soil.  The  life  of  the  Southern  colonists  was  not  more  English 
than  that  of  the  New  Englanders ;  but  it  was  much  more  of  the 
general  pattern  of  English  life,  and  more  likely  to  keep  near  the 
models  set  up  by  English  gentlemen  outside  the  towns.  There 
came  a  time,  too,  when  Virginia  received  a  strong  infusion  of 
Cavalier  blood,  and  men  came  to  her  quiet  lands  who  had  the 
air  and  habit  of  courts,  the  ambitions  of  men  of  caste  and  estate ; 
not  a  little  of  the  color  of  English  country  life  went  out  of  them 
into  all  the  ways  of  the  broad  tide- water  properties ;  and  the 
genial  air  told  kindly  upon  the  new  fashions.  Virginia  grew 
more  than  ever  like  rural  England  ;  arid  followed  the  new  ways 


THE   GOVERNMENT    OF   THE   UNITED   STATES.  273 

until  the  Scots-Irish  came  into  the  valley,  to  add  another  quality 
and  the  spice  of  variety.  Alike  in  the  North  and  in  the  South, 
climate,  soil,  and  every  natural  quality  of  the  region  chosen 
fitted  the  instinct  of  the  settlers.  Both  lived  after  their  kind. 

Expansion  without  Separation.  —  There  would  appear  to 
have  been  no  idea  of  organic  separation  in  this  southern  process  of 
expansion,  as  there  was  so  often  in  the  spreadings  of  the  New  Eng- 
land colonists.  Great  plantations  indeed  grew  up  with  an  almost 
entirely  separate  life  of  their  own,  with  their  own  wharves  on  the 
river  fronts  and  their  own  direct  trade  with  the  outer  world  by 
vessels  which  came  and  went  between  them  and  England,  or  be- 
tween them  and  the  trading  colonies  to  the  north ;  but  all  this 
took  place  without  any  idea  of  organic  political  separateness. 
This  diffused  agricultural  population,  thus  living  its  own  life  on 
the  great  rural  properties  which  steadily  multiplied  in  all  direc- 
tions, still  consciously  formed  a  single  colony,  living  at  first 
under  the  general  government  of  the  Company  which  had  sent 
out  the  first  settlers,  and  afterwards,  when  the  Company  had 
been  deprived  of  its  charter  and  possessions,  under  the  authority 
of  royal  governors.  Its  parts  hung  loosely  together,  it  is  true, 
but  they  did  not  threaten  to  fall  apart :  the  plan  was  expansion, 
not  segregation. 

Southern  Colonial  Society.  —  The  characteristics  of  the 
society  formed  under  such  circumstances  were  of  course  very 
marked.  Slaves  were  early  introduced  into  the  colony,  and 
served  well  to  aid  and  quicken  the  development  of  the  planta- 
tion system.  A  great  gap  speedily  showed  itself  between  the 
owners  of  estates  and  the  laboring  classes.  Where  slavery  ex- 
ists manual  toil  must  be  considered  slavish  and  all  the  ideas  on 
which  aristocracy  are  founded  must  find  easy  and  spontaneous 
rootage.  Great  contrasts  of  condition  soon  appeared,  such  as 
the  more  democratic  trading  communities  of  New  England  were, 
not  to  know  until  the  rise  of  the  modern  industrial  organization  ; 
and  the  governing  power  rested  with  the  powerful,  propertied 
classes. 

Government  of  Colonial  Virginia.  —  The  government  of 
colonial  Virginia  bore,  in  all  its  broader  features,  much  the  same 
character  as  the  rural  government  of  England.  Organization 


274  THE   GOVEKNMENT   OF   THE   UNITED    STATES. 

effected  through  a  machinery  of  wide  counties,  instead  of  by 
means  of  compacted  townships.  There  was  at  the  head  of  each 
county,  under  this  first  order  of  things,  a  Lieutenant  whose  duties 
corresponded  roughly  with  those  of  the  Lords  Lieutenant  in  Eng- 
land. The  other  important  executive  officer  of  the  county,  too, 
in  Virginia  as  in  England,  was  the  Sheriff.  The  Lieutenant  was 
appointed  by  the  Governor,  was  chief  of  the  military  (militia) 
organization  of  the  county,  and,  by  virtue  of  his  membership 
in  the  Governor's  Council,  exercised  certain  judicial  functions 
in  the  county.  The  Sheriff  also  was  appointed  by  the  Gov- 
ernor, upon  the  nomination  of  the  Justices  of  the  county.  His 
duties  an  English  sheriff  would  have  regarded  as  quite  normal. 
And  added  to  these  officers  there  was,  as  in  England,  a  '  com  mis- 
sion of  the  peace,'  a  body  of  justices  or  commissioners  authorized 
to  hold  county  court  for  the  hearing  of  all  ordinary  cases  not  of 
grave  import;  authorized  to  levy  the  county  taxes,  to  appoint 
surveyors  of  highways,  to  divide  the  county  into  precincts ; 
empowered  to  act  as  the  general  administrative  authority  of 
the  county  in  the  management  of  all  matters  not  otherwise  as- 
signed. The  Episcopal  church  had  the  same  official  recognition 
in  Virginia  as  in  England  and  contributed  the  same  machinery, 
—  the  machinery  of  the  vestry,  —  to  local  government.  Even 
the  division  of  the  ' hundred'  was  recognized,  so  close  was  the 
outline  likeness  between  the  institutions  of  the  mother  country 
and  those  of  her  crude  child  in  the  west.  The  system  was  un- 
democratic, of  course,  as  was  its  model :  "  the  dominant  idea," 
as  Mr.  Ingle  says,  "  was  gradation  of  power  from  the  Governor 
downward,  not  upward  from  the  people.'71  The  Justices,  like 
the  other  officers  of  the  county,  were  appointed  by  the  Governor, 
and  held  only  during  his  pleasure  :  the  whole  system  rested  upon 
a  frank  centralization.  But  still  there  was  liberty.  There  was 
strong  local  feeling  and  individual  pride  to  counteract  the  sub- 
serviency of  the  officers:  those  officers  showed  a  more  or  less 
self-respecting  independence  in  their  administration;  and  at 
least  the  spirit  of  English  self-government  was  kept  alive. 

1  Local  Institutions  in  Virginia,  by  Edward  Ingle,  Johns  Hopkins  Uni- 
\ersity  Studies  in  Historical  and  Political  Science,  3d  Series,  p.  97  (con 
tinuous,  p.  199). 


THE  GOVERNMENT   OF   THE  UNITED   STATES.  275 

Virginia's  Colonial  Assembly.  —  The  vital  centre  of  the 
political  life  of  the  colony  was  her  representative  assembly.  So 
early  as  1619,  only  twelve  years  after  the  foundation  of  the  colony 
(1607),  the  Virginia  Company,  then  still  in  control,  had  called 
together  in  the  colony,  through  its  governor,  an  assembly  repre- 
senting the  several  plantations  then  existing,  which  were  in  this 
way  treated  as  independent  corporations  entitled  to  a  represent- 
ative voice  in  colonial  affairs.  Later  years  saw  the  Assembly 
developed  upon  the  basis  of  a  representation  by  towns,  hundreds, 
and  plantations :  and  even  after  the  governors  sent  out  by  the 
Company  had  been  supplanted  by  royal  governors  this  represent- 
ative body,  this  House  of  Burgesses,  as  it  came  to  be  styled, 
continued  to  exist,  and  to  wax  strong  in  control.  It  was  some 
time  before  the  area  of  the  colony  justified  that  broader  division 
into  counties  which  was  so  characteristic  of  later  days,  and  which 
changed  very  radically  the  system  of  representation.  The 
1  towns '  and  '  plantations '  of  the  early  days  seem  to  have  been 
known,  at  any  rate  for  purposes  of  representation,  as  l  boroughs/ 
and  the  representative  house  got  its  name,  '  House  of  Burgesses/ 
before  county  representation  grew  up.  The  first  Assembly,  that 
of  1619,  sat  in  joint  session  with  the  Governor  and  his  Council, 
but  the  more  fully  developed  assembly  of  later  times  sat  apart 
as  a  distinct  and  independent  body.  It  was  this  elective  repre- 
sentation in  the  government  of  the  colony  which  made  and  kept 
Virginia  a  vital  political  unit,  with  a  real  organic  life  and  feeling. 

The  Constitutions  of  the  other  Southern  Colonies  corre- 
sponded in  the  main  with  the  constitution  of  Virginia.  They, 
too,  had  the  county  system  and  the  general  representation  in  a 
central  assembly,  combined  with  governors  and  councils  ap- 
pointed by  the  Crown.  All  save  Maryland.  Her  constitution 
differed  from  the  others  mainly  in  this,  that  in  place  of  the  king 
stood  a  '  proprietor/  to  whom  the  fullest  prerogatives  of  govern- 
ment had  been  granted. 

The  Middle  Colonies  had  a  mixed  population.  New 
York  had  been  New  Netherland,  and  the  Delaware  had  been 
first  settled  by  the  Swedes  and  then  conquered  by  the  Dutch. 
When  the  territory  which  was  to  comprise  New  York,  New 
Jersey,  Delaware,  and  Pennsylvania  fell  into  the  hands  of  the 


276  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

English  the  foreign  element  was  not  displaced  but  merely  domi- 
nated; and  to  a  large  extent  it  kept  its  local  peculiarities  of 
institution.  For  the  rest,  the  English  settlers  of  the  region 
followed  no  uniform  or  characteristic  method  of  organization. 
The  middle  colonies,  though  possessed  of  a  rich  soil,  had  also 
fine  seaports  which  invited  to  commerce;  their  climate  was 
neither  so  harsh  as  that  of  New  England,  nor  so  mild  and  be- 
guiling as  that  of  the  southern  colonies.  Their  people  were  of 
all  sorts  and  origins.  They  built  towns  and  traded,  like  the 
people  of  New  England ;  they  also  spread  abroad  over  the  fertile 
country  and  farmed,  like  the  people  of  Virginia.  They  did  these 
things,  moreover,  without  developing  either  the  town  system  of 
New  England  or  the  plantation  system  of  Virginia.  Townships 
they  had,  but  counties  also;  they  were  simple  and  democratic, 
like  the  New  Englanders,  and  yet  they  were  agricultural  also, 
like  the  Virginians :  in  occupation  and  political  organization,  as 
well  as  in  geographical  situation,  they  were  midway  between 
their  neighbors  to  the  north  and  south. 

The  Charters :  Massachusetts.  —  The  political  relations 
of  the  colonies  to  the  mother  country  during  the  various  develop- 
ments of  which  I  have  spoken  were  as  various  as  their  separate 
histories.  The  three  New  England  colonies,  Massachusetts, 
Rhode  Island,  and  Connecticut,  possessed  charters  from  the 
king  which  virtually  authorized  them  to  conduct  their  own 
governments  without  direct  interference  on  the  part  of  the 
Administration  at  home.  During  the  first  years  of  English 
settlement  on  the  American  coast  it  had  been  the  practice  of 
the  government  in  England  to  grant  territory  on  the  new 
continent  to  companies  like  the  Virginia  Company  of  which  I 
have  spoken, — grants  which  carried  with  them  the  right  of 
governing  the  new  settlements  subject  only  to  a  general  super- 
vision on  the  part  'of  the  home  authorities.  The  colony  of 
Massachusetts  Bay  was  established  under  such  an  arrangement : 
a  Company,  to  which  special  privileges  of  settlement  and  govern- 
ment had  been  granted,  sent  out  colonists  who  founded  Salem 
and  Boston ;  but  the  history  of  this  Company  was  very  different 
from  the  history  of  the  Virginia  Company.  The  Virginia  Com- 
pany tried  to  manage  their  colony  from  London,  where  the 


THE   GOVERNMENT    OF   THE    UNITED    STATES.  277 

members  of  the  Company,  who  were  active  liberals  and  therefore 
not  very  active  courtiers,  presently  got  into  trouble  with  the 
government  and  had  both  their  charter  and  their  colony  taken 
away  from  them.  The  Massachusetts  Company,  on  the  other 
hand,  itself  came  to  America,  and,  almost  unobserved  by  the 
powers  in  London,  erected  something  very  like  a  separate  state 
on  the  new  continent.  Its  charter  was  received  in  1629 ;  in  1630 
it  emigrated,  governor,  directors,  charter,  and  all,  to  America, 
bringing  a  numerous  body  of  settlers,  founded  Salem,  Boston, 
and  Cambridge,  and  put  quietly  into  operation  the  complete 
machinery  of  government  which  it  had  brought  with  it.  It 
created  not  a  little  stir  in  official  circles  in  England  when  it  was 
discovered  that  the  Company  which  had  been  given  rights  of 
settlement  on  the  New  England  coast  had  left  the  country  and 
was  building  a  flourishing  set  of  independent  towns  on  its  terri- 
tories; but  small  colonies  at  a  great  distance  could  not  long 
retain  the  attention  of  busy  politicians  in  London,  and  nothing 
was  done  then  to  destroy  the  bold  arrangement.  Fatal  collision 
with  the  home  government  could  not,  however,  it  turned  out,  be 
permanently,  or  even  long  avoided  by  the  aggressive,  self-willed 
rulers  of  the  Massachusetts  Company.  Many  of  the  laws  which 
they  passed  did  not  please  the  Crown,  —  particularly  those  which 
set  up  an  exclusive  religion  and  tolerated  no  other ;  they  would 
not  change  their  laws  at  the  Crown's  bidding ;  and,  though  the 
evil  day  was  postponed,  it  came  at  last.  In  1684  the  contest 
between  Crown  and  colony  came  to  a  head,  and  the  charter  of 
the  Massachusetts  Company  was  annulled.  Before  a  change 
could  be  effected  in  the  government,  indeed,  the  king,  Charles  II., 
died,  and  at  the  end  of  the  troublous  reign  of  James  II.  the 
colonists  quietly  resumed  their  charter  privileges;  but  in  1692 
the  government  of  William  and  Mary  was  ready  to  deal  with 
them,  and  a  new  form  of  colonial  organization  was  forced  upon 
them.  They  were  compelled  to  take  a  governor  from  the  king ; 
the  royal  governor  appointed  the  judicial  officers  of  the  colony 
and  controlled  its  military  forces ;  and,  although  the  colonists 
retained  their  assembly  and  through  that  assembly  chose  the 
governor's  council,  the  old  charter  privileges  were  permanently 
lost. 


278  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

The  Connecticut  Charter.  —  Rhode  Island  and  Connecti- 
cut were  smaller  and  more  fortunate.  The  town  of  Saybrook, 
at  the  mouth  of  the  Connecticut  river,  had  been  founded  under 
a  charter  granted  to  two  English  noblemen,  and  consisted,  there* 
fore,  of  immigrants  direct  from  England;  but  Saybrook  did  not 
grow  rapidly  and  proved  a  comparative  failure.  The  successful 
and  dominant  settlement  on  the  Connecticut  .was  that  which  was 
founded  higher  up  the  river  at  Hartford,  by  men  from  Massa- 
chusetts who  had  neither  charter  nor  any  other  legal  rights,  but 
who  had  simply  come,  settled,  and  made  a  written  constitution 
for  themselves.  New  Haven,  westward  of  the  river  on  the 
shore  of  the  sound,  had  been  established  by  a  band  of  English 
immigrants  equally  without  charter  rights,  but  equally  ready 
and  able  to  construct  a  frame  of  government  for  themselves. 
Some  thirty  years  after  their  settlement,  the  leaders  of  the 
'Connecticut  colony,'  up  the' river,  which  meantime  had  become 
an  extended  cluster  of  towns,  decided  that  it  was  time  to  obtain 
a  charter.  Accordingly  they  sent  their  governor,  Winthrop,  to 
England  to  procure  one.  He  was  entirely  successful,  much  more 
successful  than  was  pleasant  to  the  settlers  of  the  New  Haven 
district ;  for  he  had  obtained  a  grant  which  included  their  lands 
and  colony  and  which  thus  forced  them  to  become  a  part  t>f 
'  Connecticut.'  Saybrook  had  already  been  absorbed.  The 
charter  gave  the  colonists  substantially  the  same  rights  of  self- 
government  that  they  had  had  under  their  own  written  constitu- 
tion, adopted  upon  their  first  settlement ;  it  was,  in  other  words, 
just  such  a  charter  as  Massachusetts  then  enjoyed.  And,  unlike 
Massachusetts,  Connecticut  kept  her  charter,  kept  it  not  only 
through  colonial  times  to  the  Revolution,  but  made  it  at  the 
Revolution  her  state  constitution,  and  was  content  to  live  under 
it  until  1818.  Her  shrewdness,  her  acts  of  timely  concession, 
and  her  inoffensive  size  enabled  her  to  turn  away  from  herself 
each  successive  danger  of  forfeiture. 

Rhode  Island's  Charter.  —  Rhode  Island  was  similarly 
protected  by  fortune  and  sagacious  management.  Roger  Wil- 
liams, the  energetic  leader  of  settlement  in  that  region,  obtained 
a  charter  from  Parliament  in  1644,  which  was  confirmed  in  1654) 
and  replaced  by  a  new  charter,  from  Charles  II.,  in  1663,  the  yeai 


THE   GOVERNMENT   OF  THE   UNITED   STATES.  279 

after  Connecticut  obtained  its  legal  privileges  through  the  instru- 
mentality of  Winthrop.  As  New  Haven  and  Connecticut  were 
joined  ^>y  Winthrop's  charter,  so  were  the  towns  of  the  Rhode 
Island  country  united  by  the  charters  obtained  by  Williams, 
under  the  style  '  Rhode  Island  and  Providence  Plantations/  —  a 
title  which  is  still  the  full  official  name  of  the  state.  The  charter 
of  1663  was  retained  by  the  people  of  Rhode  Island  even  •  longer 
than  the  people  of  Connecticut  retained  theirs.  It  was  not  radi- 
cally changed  until  1842. 

Proprietary  Governments.  —  The  governments  of  almost 
all  the  other  colonies  were  at  first  ( proprietary ' ;  those  of  Mary- 
land, Pennsylvania,  and  Delaware  remained  proprietary  until  the 
Revolution.  Maryland  was  granted  to  the  Calverts,  Lords  Balti- 
more; Pennsylvania  and  Delaware  were  both  included  in  the 
grant  to  William  Penn ;  New  York  was  bestowed  upon  James, 
Duke  of  York,  upon  whose  ascension  of  the  throne,  as  James  II., 
it  became  an  immediate  province  of  the  Crown;  New  Jersey, 
originally  a  part  of  New  York,  was  first  bestowed  by  the  Duke 
of  York  on  Lord  John  Berkeley  and  Sir  John  Carteret,  was  after- 
wards divided,  then  sold  in  part,  and  finally  surrendered  to  the 
Crown  (1702) ;  the  Caroliuas  and  Georgia  in  the  same  way,  given 
at  first  to  proprietors,  passed  very  soon  into  the  hands  of  the 
royal  government.  New  Hampshire,  after  several  attempts  to 
unite  with  Massachusetts,  fell  quietly  into  the  status  of  a  royal 
colony,  without  having  had  either  a  charter  or  even  any  regularly 
ordered  proprietary  stage  of  existence. 

Government  under  proprietors  meant  simply  government 
by  governors  and  councils  appointed  by  the  proprietors,  with  in 
all  cases  a  right  on  the  part  of  the  people  to  exercise  a  substantial 
control  over  the  government  through  representative  assemblies. 
The  private  proprietors,  like  the  great  public  proprietor,  the 
Crown,  granted  charters  to  their  colonies.  The  charter  which 
Penn  bestowed  upon  Pennsylvania  is  distinguished  as  one  of  the 
best-conceived  and  most  liberal  charters  of  the  time;  and  under 
it  his  colony  certainly  enjoyed  as  good  government  as  most  of  the 
colonies  could  secure. 

Direct  Government  by  the  Crown,  which  came  in  turn  to 
every  colony  except  Rhode  Island,  Connecticut,  Pennsylvania,  and 


280    THE  GOVERNMENT  OF  THE  UNITED  STATES. 

Delaware,  involved  the  appointment  of  governors  by  the  Crown, 
and  also,  everywhere  except  in  Massachusetts,  the  appointment 
of  the  governor's  council.  It  generally  involved  also  the  depend- 
ence of  the  colonial  judiciary,  and  in  general  of  the  whole  admin- 
istrative machinery  of  government,  upon  the  royal  will ;  but  it, 
nevertheless,  did  not  exclude  the  colonists  from  substantial  powers 
of  self-government.  Everywhere  legislators  disciplined  governors 
with  the  effective  whip  of  the  money  power,  and  everywhere  the 
people  grew  accustomed  to  esteem  the  management  of  their  own 
affairs,  especially  the  control  of  their  own  taxes,  matter-of-course 
privilege,  just  as  much  the  inalienable  right  of  Englishmen  in 
America  as  of  Englishmen  in  England. 

Development  of  the  Assemblies.  —  It  was,  indeed,  as  a 
matter  of  course  rather  than  as  a  matter  of  definite  legal  right 
that  the  powers  of  the  colonial  assemblies  waxed  greater  and 
greater  from  year  to  year.  Parliament  would  have  been  wise  to 
continue  the  policy  of  neglect  which  had  been  the  opportunity 
of  the  colonies  in  the  development  of  their  constitutional  liberties. 
Left  to  themselves,  they  quickly  showed  what  race  they  were  of. 

As  Burke  said,  in  their  justification,  they  "had  formed  within  them- 
selves, either  by  royal  instruction  or  royal  charter,  assemblies  so  exceed- 
ingly resembling  a  parliament,  in  all  their  forms,  functions,  and  powers, 
that  it  was  impossible  thjsy  should  not  imbibe  some  opinion  of  a  simi- 
lar authority.  At  the  first  designation  of  these  assemblies,  they  were 
probably  not  intended  for  anything  more  (nor  perhaps  did  they  think 
themselves  much  higher)  than  the  municipal  corporations  within  this 
island,  to  which  some  at  present  love  to  compare  them.  But  nothing  in 
progression  can  rest  on  its  original  plan.  .  .  .  Therefore,  as  the  colonies 
prospered  and  increased  to  a  numerous  and  mighty  people,  spreading  over 
a  very  great  tract  of  the  globe,  it  was  natural  that  they  should  attribute 
to  assemblies  so  respectable  in  their  formal  constitution  some  part  of  the 
dignity  of  the  great  nations  which  they  represented.  No  longer  tied 
to  by-laws,  these  assemblies  made  acts  of  all  sorts  and  in  all  cases 
whatsoever.  They  levied  money,  not  for  parochial  purposes,  but  upon 
regular  grants  to  the  Crown,  following  all  the  rules  and  principles  of  a 
parliament,  to  which  they  approached  every  day  more  and  more  nearly. 
.  .  .  Things  could  not  be  otherwise  ;  and  English  colonies  must  be  had 
on  these  terms,  or  not  had  at  all.  In  the  meantime  neither  party  felt 
any  inconvenience  from  this  double  legislature  [the  parliament  of  Eng- 
land, that  is,  and  a  colonial  legislature],  to  which  they  had  been  formed 
by  imperceptible  habits,  and  old  custom,  the  great  support  of  all  the  gov- 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  281 

ernments  in  the  world.  Though  these  two  legislatures  were  sometimes 
found  perhaps  performing  the  very  same  functions,  they  did  not  very 
grossly  or  systematically  clash.  ...  A  regular  revenue,  by  the  authority 
of  Parliament,  for  the  support  of  civil  and  military  establishments,  seems 
not  to  have  been  thought  of  until  the  colonies  were  too  proud  to  submit, 
too  strong  to  be  forced,  too  enlightened  not  to  see  all  the  consequences 
which  must  arise  from  such  a  system."  l 

In  such,  assertions  of  a  right  of  parliamentary  self-gov- 
ernment it  might  be  expected  that  the  charter  colonies  would  be 
most  forward;  but,  as  a  matter  of  fact,  such  was  not  the  case. 
Massachusetts  was  ever,  indeed,  very  stubbornly  and  heroically 
attached  to  her  liberties,  but  the  royal  colony  of  Virginia  was  not 
a  whit  behind  her.  The  assemblies  of  the  royal  colonies,  no  less 
than  those  of  the  charter  governments,  early,  and  as  if  by  an 
instinct  and  habit  common  to  the  race,  developed  a  consciousness 
and  practice  of  local  sovereignty,  which  comported  well  enough, 
indeed,  with  a  perfect  loyalty,  —  long-suffering  in  respect  of  Navi- 
gation Acts  and  all  like  attempts  of  the  mother  country  to  regu- 
late their  place  in  the  politics  and  commerce  of  the  outside  world, 
—  but  which  was  from  the  first  prompt  to  resent  and  resist  all 
dictation  as  to  the  strictly  interior  affairs  of  the  settlements. 
And  the  same  was  true  of  the  proprietary  colonies,  also.  Mary- 
land assumed  the  same  privileges  that  Virginia  insisted  upon,  and 
even  Pennsylvania,  with  its  population  compounded  of  English, 
Dutch,  and  Swedes,  manifested  not  a  little  of  the  same  spirit  of 
independent  self-direction. 

Development  of  Constitutional  Liberty  in  the  Colonies.  — 
There  was,  therefore,  a  comparatively  uniform  development  of 
constitutional  liberty  throughout  the  colonies.  Everywhere  the 
same  general  causes  were  operative.  The  settlement  and  develop- 
ment of  a  new  country  gave  to  the  elective  governing  bodies  of 
the  colonies  a  wide  and  various  duty  of  legislative  regulation; 
the  newness  of  the  country  created  everywhere  substantially  the 
same  new  conditions  of  social  relationship;  everywhere,  and 
more  and  more  as  the  years  went  on,  there  was  a  very  general 
participation  in  communal  and  colonial  affairs  by  the  mass  of 

1  "Letter  to  the  Sheriffs  of  Bristol,"  Works  (ed.  Boston,  1880),  Vol.  II., 
pp.  232,  233. 


282  THE    GOVERNMENT   OF   THE   UNITED    STATES. 

the  people  most  interested :  arid  democratic  institutions  brought 
in  their  train  equality  of  law  and  a  widespread  consciousness  of 
community  of  interest.  Each  colony  grew,  the  while,  more  and 
more  vividly  conscious  of  its  separate  political  personality  in  its 
relations  with  the  other  colonies  and  with  the  ruling  powers  in 
England. 

Political  Sympathy  of  the  Colonies.  —  The  substantial 
identity  of  institutional  development  in  the  several  colonies 
appears  in  nothing  more  clearly  or  conclusively  than  in  their 
close  and  spontaneous  alliance  against  England  at  the  Revolution. 
Despite  very  considerable  outward  differences  of  social  condition 
and  many  apparent  divergencies  of  interest  as  between  colony 
and  colony,  they  one  and  all  wanted  the  same  revolution.  Almost 
without  hesitation  they  ran  together  to  cooperate  by  the  same 
means  for  the  same  ends.  They  did  not  so  much  make  a  common 
cause  as  have  a  common  cause  from  the  first.  The  real  concrete 
case  of  revolution,  it  happened,  was  made  up  between  England 
and  Massachusetts.  To  the  politicians  in  the  mother  country  it 
seemed  possible  to  divide  the  colonies  on  grounds  of  self-interest. 
Apparently  colonies  so  utterly  different  in  every  outward  aspect, 
so  strongly  contrasted  in  actual  economic  condition  as  Massachu- 
setts and  Virginia,  could  easily  be  played  off  against  one  another. 
But  we  now  know  how  little  foundation  of  fact  such  a  view  had. 
Boston's  trade  was  offered  to  Salem,  her  commercial  rival,  as  a 
bait  to  catch  Salein's  acquiescence  in  the  stringent  Boston  Port 
Bill  which  shut  Boston  off  from  all  trade ;  but  Salem  would  not 
have  it.  What  was  to  prevent  similar  treatment  of  herself  in  the 
future  ?  More  striking  still,  distant  Virginia  sounded  the  call 
to  revolution  in  behalf  of  Massachusetts.  The  contest  was 
political,  she  clearly  perceived,  not  economical,  —  a  contest  of 
principle,  not  a  contest  for  any  temporary  interest  or  momentary 
advantage.  From  the  point  of  view  of  politics  Massachusetts' 
quarrel  was  Virginia's  also.  Virginia  spoke  at  once,  therefore, 
and  as  a  leader,  for  combination,  for  a  joint  resistance  to  the 
aggressions  of  the  home  government,  and  at  length  for  inde- 
pendence and  a  perpetual  union  between  the  colonies.  For  the 
shortest  possible  time  did  the  struggle  remain  local ;  almost 
immediately  it  became  '  continental.' 


THE   GOVERNMENT   OF   THE    UNITED   STATES.  283 

American  as  compared  with  English  Constitutional  Devel- 
opment.—  There  was  in  this  development  of  self-government  in 
America  a  certain  very  close  resemblance  to  the  development  of 
self-government  in  England;  but  there  were  also  other  points 
of  very  strong  and  obvious  contrast  between  the  institutional 
histories  of  the  two  countries.  Both  in  England  and  in  America 
the  process  of  institutional  growth  was  in  the  same  direction. 
It  began  with  small,  hardy,  deep-rooted  local  institutions,  with 
small  self-directing  communities,  and  widened  from  these  to 
national  institutions  which  bound  the  constituent  communities 
together  in  a  strong  and  lasting  central  union.  England  began 
with  her  village  communities  and  her  judicial  '  hundreds/  with 
the  primitive  communal  institutions  of  the  Teutonic  folk ;  these 
were  first  gathered  to  a  head  in  the  petty  kingdoms  of  the  days 
of  the  Saxon  Heptarchy ;  another  step,  and  these  one-time  petty 
kingdoms  were  merely  the  counties  of  a  wider  union,  and 
England  was  ready  for  the  amalgamation  of  the  Norman  rule, 
—  for  the  growth  of  her  parliaments  and  her  nationality.  In 
like  manner,  the  United  States  began  with  isolated  settlements 
upon  a  long  coast,  settlements  separate,  self-contained,  self- 
regulative;  these  in  time  merged  in  numerous  petty  colonial 
states;  and  finally  these  colonial  states  fitted  themselves  to- 
gether into  a  national  union. 

Process  of  Growth  in  America  Federation,  in  England 
Consolidation.  —  But  the  means  of  integration  were  in  the  two 
cases  quite  diverse.  American  integration  has  been  federal; 
English,  absorptive,  incorporative.  The  earlier  stages  of  federa- 
tion did  not  appear  in  the  Southern  colonies ;  because  there  the 
unity  of  the  first  settlement  was  generally  not  broken;  the 
Virginia  of  the  Revolution  was  but  an  expansion  of  the  James- 
town settlement;  growth  by  agricultural  development  was  not 
disintegration  like  growth  by  town  establishment.  But  in  New 
England  the  process  was  federative  from  the  first,  finding  its  most 
perfect  type,  probably,  in  Rhode  Island,  whose  town  atoms  drew 
so  slowly  and  reluctantly  together  and  so  long  stoutly  resisted 
the  idea  that  they  had  in  any  sense  been  absorbed  or  subordinated 
under  the  operation  of  the  charters  of  <  Rhode  Island  and  Provi- 
dence Plantations/  What  was  at  first  mere  confederation 


284  THE    GOVERNMENT   OF   THE    UNITED   STATES. 

between  these  smallest  units,  however,  by  degrees  became  virtual 
coalescence,  and  the  absorbed  towns  finally  formed  but  subordi- 
nate parts  in  the  new  and  larger  colonial  units  which  drew 
together  in  the  Continental  Congresses.  Between  these  larger 
units,  these  full-grown  colonial  states,  union  was  from  the  first 
distinctly  federative,  matter  of  concession  and  contract.  They 
were  united  in  entirely  voluntary  association,  as  the  Saxon 
kingdoms  were  not. 

Conscious  Development  of  Institutions  in  America.  - 
Throughout  their  development  the  colonies  presented  a  marked 
contrast  to  English  development  in  this,  that  the  formulation 
of  their  institutions  was  conscious  and  deliberate.  The  royal 
colonies,  like  the  proprietary  and  the  charter  colonies,  exercised 
their  rights  of  self-government  under  written  grants  of  privilege 
from  the  Crown :  their  institutions  grew  within  the  area  of 
written  constituent  law ;  from  the  first  they  had  definite  written 
'  constitutions '  wherein  the  general  fabric  of  their  governments 
was  outlined.  Constitution  by  written  law,  therefore,  became 
very  early  one  of  the  matter-of-course  habits  of  colonial  thought 
and  action.  When  they  cast  off  their  allegiance  to  Great  Britain 
their  self-constitution  as  independent  political  bodies  took  the 
shape  of  a  recasting  of  their  colonial  constitutions  simply.  Rhode 
Island  and  Connecticut,  as  we  have  seen,  did  not  even  find  it 
necessary  to  change  their  charters  in  any  important  particular  : 
they  already  chose  their  own  governors  and  officials  as  well  as 
made  their  own  laws.  The  other  colonies,  with  little  more 
trouble,  found  adequate  means  of  self-government  in  changes 
which  involved  hardly  more  than  substituting  the  authority  of 
the  people  for  the  authority  of  the  English  Crown.  But  the 
charter,  the  written  constituent  law,  was  retained :  the  new  gov- 
ernments had  their  charters  which  emanated  from  the  people,  as 
the  old  governments  had  had  theirs  given  by  the  king.  Popular 
conventions  took  the  place  of  the  Privy  Council.  The  colonists 
were  not  inventing  written  constitutions  ;  they  were  simply  con- 
tinuing their  former  habitual  constitutional  life. 

English  Law  and  Precedent.  —  Whatever  the  form  of 
colonial  institutions,  however,  their  substance  and  content  were 
thoroughly  English.  In  a  sense,  indeed,  even  the  forms  of  colo- 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  285 

nial  constituent  law  may  be  said  to  have  been  English,  since  it 
was  English  practice  which  originated  the  idea  and  habit  of  giv- 
ing written  grants  of  privilege  to  distant  colonies.  The  colonial 
law  of  Canada  and  Australia  stands  to-day  in  much  the  same 
relation  to  the  law  of  the  mother  country  that  the  law  of  the 
American  colonies  bore  to  the  law  which  created  them  (page  255). 
Within  the  constitutions  of  the  colonial  and  revolutionary  time, 
at  any  rate,  English  law  and  precedent  were  closely  followed. 
The  English  common  law  has  gone  with  Englishmen  to  the  ends 
of  the  world.  The  English  communities  in  America  were  but  pro- 
jected parts  of  the  greater  English  community  at  home ;  the  laws  of 
private  and  personal  relationship  which  obtained  in  England  were 
recognized  and  administered  also  in  the  colonies ;  and  when,  at 
the  time  of  the  Revolution,  the  colonists  developed  out  of  their 
charters  the  constitutions  under  which  they  were  to  live  as  inde- 
pendent commonwealths  their  first  care  was  to  adopt  this  common 
law  under  which  they  had  always  acted.  Important  modifications 
were  made,  it  is  true,  in  the  law  thus  adopted.  It  was  purged 
of  all  class  privilege,  of  all  church  prerogative,  of  all  things  in- 
compatible with  the  simple  democratic  society  of  ttfe  new  world ; 
but  no  real  break  was  made  with  the  principles  of  English  legal 
precedent  and  practice. 

Quite  as  naturally  and  quite  as  completely  was  English 
practice  adhered  to  in  the  public  law  of  the  colonies  and  of  the 
independent  commonwealths  into  which  they  grew.  The  re- 
lations of  the  colonial  legislatures  with  the  colonial  governors 
were  substantially  the  relations  of  King  and  Parliament  repro- 
duced on  a  small  scale,  but  with  scarcely  less  earnestness  and 
spirit.  In  all  respects,  except  that  of  the  erection  of  a  responsible 
ministry  representing  and  shielding  the  executive,  the  relations 
of  the  people  to  their  governments  suggest  English  precedent. 
The  powers  of  the  executive  were,  in  small,  the  powers  of  the 
Crown.  The  courts  were  constituted  as  the  English  courts  were, 
and  followed  the  same  rules  of  procedure.  The  English  in 
America,  being  men  of  the  same  practical  political  race  as  Eng- 
lishmen in  England,  struck  out  not  a  few  lines  of  development  of 
their  own  in  suiting  their  institutions  to  the  daily  needs  of  a  new 
civilization  and  to  novel  conditions  of  social  organization ;  Ameri- 


286     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

can  politics  were  not  long  in  acquiring  in  many  respects  a  charac- 
ter peculiarly  their  own.  But  the  manner  of  development  was 
English  throughout :  there  was  nowhere  any  turning  of  sharp 
corners:  there  was  nowhere  any  break  of  continuity.  To  the 
present  day  our  institutions  rest  upon  foundations  as  old  as  the 
Teutonic  peoples. 

Union :  Preliminary  Steps.  —  How  much  of  political 
precedent  that  was  their  own  the  colonists  had  developed  ap- 
peared most  distinctly  when  they  came  to  put  the  timbers  of 
their  Union  together  in  the  days  succeeding  the  Revolution.  The 
colonies  cannot  be  said  to  have  framed  any  federative  constituent 
law  until  1777,  when  the  Articles  of  Confederation  were  drawn 
up.  Before  that  time  they  had  cooperated  without  any  determi- 
nate law  of  cooperation,  acting  rather  upon  the  suggestions  of 
international  procedure  than  upon  any  clear  recognition  of  corpo- 
rate combination.  Preparations  for  union  there  had  been,  and 
signs  of  its  coming;  but  no  more.  For  a  period  of  forty  years 
following  the  year  1643  the  New  England  colonies  had  held 
together  in  a  loose  confederation  against  the  Indians;  in  1754 
colonial  delegates  who  had  met  at  Albany  for  conference  with 
representatives  of  the  Six  Nations  discussed  a  premature  plan  of 
union ;  in  1765  delegates  from  nine  of  the  colonies  met  at  New 
York  and  uttered  in  behalf  of  all  English  Americans  that  protest 
against  taxation  by  Parliament  which  gave  the  key-note  to  the 
revolutionary  movement  that  followed ;  and  in  1774  sat  the  first 
of  the  series  of  ' Continental  Congresses'  with  which  began 
American  union.  But  in  none  of  these  steps  was  there  any 
creation  of  organic  union:  that  was  to  be  the  result  of  slow 
processes,  and  was  to  be  effected  only  by  the  formulation  of  an 
entirely  new  body  of  law. 

Separateness  of  the  Colonial  Governments.  —  It  is  very 
important,  if  a  just  view  is  to  be  formed  of  the  processes  by  which  the 
Union  was  constructed,  to  realize  the  complete  separateness  of  the  gov- 
ernments of  the  colonies.  They  all  held  substantially  the  same  general 
relation  to  the  English  authorities ;  they  had  a  common  duty  as  towards 
the  distant  country  from  which  they  had  all  come  out  j  but  they  were  not 
connected  with  each  other  by  any  bonds  of  government  on  this  side  the 
sea.  Each  of  the  colonies  had  its  separate  executive  officials,  legislature, 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  287 

and  courts,  which  had  no  connection  whatever  with  the  officers,  legisla- 
tures, and  courts  of  any  other  colony.  Their  cooperation  from  time  to 
time  in  meeting  dangers  which  threatened  them  all  alike  was  natural  and 
spontaneous,  but  it  was  intermittent;  it  rested  upon  mere  temporary 
necessity  and  had  no  basis  of  interior  organic  law.  The  colonists  had 
many  grounds  of  sympathy.  Besides  possessing  the  same  blood  and  the 
same  language,  they  entertained  the  same  ideas  about  political  justice ; 
their  dangers,  whether  proceeding  from  aggressions  on  the  part  of  the 
French  and  Indians  which  threatened  their  lives,  or  from  aggressions 
by  Parliament  which  threatened  their  liberties,  were  common  dangers  : 
they  were  one  and  all  equally  interested  in  the  successful  development 
and  liberal  government  of  the  new  country  with  which  they  had  identified 
themselves.  But  the  motive  of  their  endeavors  was  always  the  preserva- 
tion of  their  internal  and  separate  self-government ;  their  liberties  were 
historically  coincident  with  their  separate  organization  and  rights  as  dis- 
tinct governments.  It  was  only  by  a  slow  and  hard  experience  of  the 
fatal  consequences  of  any  other  course  that  the  colonies  were  brought  to 
subordinate  themselves  to  a  central  authority  which  could  go  further  than 
mere  conference  and  command  them.  They  saw  from  the  first  the  neces- 
sity for  cooperation,  but  they  did  not  see  from  the  first  the  absolute 
necessity  for  union.  Very  slowly,  considering  the  swift  influences  of 
revolution  amidst  which  they  worked,  and  very  reluctantly,  considering 
the  evident  dangers  of  separation  which  daily  looked  them  in  the  face, 
did  they  construct  the  union  which  was  to  deprive  them  of  the  fulness 
of  their  loved  independence. 

The  Confederation.  — It  was  not  until  1781  that  a  founda- 
tion of  distinct  written  law  was  put  beneath  the  practice  of  union ; 
it  was  not  till  1789  that  the  law  of  the  union  was  made  organic. 
In  1781  the  Articles  of  Confederation  were  finally  adopted  which 
had  been  proposed  by  the  Continental  Congress  of  1777.  But 
those  Articles  gave  no  real  integration  to  the  confederated  states: 
they  were  from  the  first  a  rope  of  sand  which  could  bind  no  one. 
They  did  little  more  than  legitimate  the  Continental  Congress. 
Under  them  the  powers  of  the  Confederation  were  to  be  exercised 
by  its  Congress ;  its  only  executive  or  judicial  organs  were  to  be 
mere  committees  or  agencies  of  the  Congress;  and  it  was  in  fact 
to  have  no  real  use  for  executive  parts,  for  it  was  to  have  no 
executive  rights.  Its  function  was  to  be  advice,  not  command. 
It  hung  upon  the  will  of  the  states,  being  permitted  no  effective 
will  of  its  own.  The  Articles  were  in  effect  scarcely  more  than 
an  international  convention. 


288  THE   GOVERNMENT    OF    THE   UNITED    STATES. 

The  Articles  of  Confederation  formally  vested  the  exercise 
of  federal  functions  in  a  Congress  just  such  as  the  Continental  Con- 
gresses had  been, — a  Congress,  that  is,  consisting  of  delegates  from  the 
several  states,  and  in  whose  decisions  the  states  were  to  have  an  abso- 
lutely equal  voice.  No  state,  it  was  arranged,  should  have  her  vote  in 
the  Congress  unless  represented  by  at  least  two  delegates,  and  no  state, 
on  the  other  hand,  was  to  be  entitled  to  send  more  than  seven  delegates  ; 
whether  she  sent  two  or  seven,  however,  her  vote  was  to  be  a  single  vote, 
upon  which  her  delegates  were  to  agree.  The  government  thus  consti- 
tuted was  officially  known  as  "  The  United  States  in  Congress  assembled." 
For  the  exercise  of  representative  functions  it  was  very  liberally  and  com- 
pletely equipped.  To  it  the  independence  of  the  several  states  in  dealing 
with  foreign  powers  was  entirely  subordinated.  It  alone  was  to  conduct 
international  correspondence  and  sanction  international  agreements;  it 
was  to  control  the  army  and  navy  of  the  Confederation ;  it  was  to  preside 
over  federal  finances,  doing  all  the  borrowing  and  all  the  spending  that 
might  be  necessary  for  the  purposes  of  the  common  government ;  it  was 
to  determine  the  value  of  current  coin  and  the  standards  of  weights  and 
measures  ;  it  was  to  be  arbitrator  in  disputes  between  the  states  ;  in  brief, 
it  was  to  be  the  single  and  dominant  authority  for  all  the  graver  common 
interests  of  the  constituent  states:  its  representative  position  was  emi- 
nent and  complete. 

Weakness  of  the  Confederation.  —  But  it  was  given  abso- 
lutely no  executive  power,  and  was  therefore  helpless  and  contemptible. 
It  could  take  no  important  resolution  without  the  difficult  concurrence 
of  nine  states,  —  a  concurrence  made  all  the  more  difficult  by  the  fact  that 
the  removal  of  the  pressure  of  the  war  with  England  very  greatly  abated 
the  interest  of  the  states  in  the  functions  of  the  central  Congress,  and  led 
some  of  them  to  fail  again  and  again  to  send  any  delegates  to  its  sessions. 
Its  chief  executive  agency  was  a  committee  of  its  members  represent- 
ing all  the  states  (hence  called  the  "Committee  of  States")  and  bound 
by  the  same  hard  rule  of  obtaining  the  concurrence  of  nine  of  its  thir- 
teen members  to  every  important  executive  step.  Above  all,  its  only 
power  to  govern  was  a  power  to  advise.  It  could  ask  the  states  for 
money,  but  it  could  not  compel  them  to  give  it ;  it  could  ask  them  for 
troops,  but  could  not  force  them  to  heed  the  requisition ;  it  could  make 
treaties,  but  must  trust  the  states  to  fulfil  them  ;  it  could  contract  debts, 
but  must  rely  upon  the  states  to  pay  them.  It  was  a  body  richly  enough 
endowed  with  prerogatives,  but  not  at  all  endowed  with  powers.  "The 
United  States  in  Congress  assembled"  formed  a  mere  consultative  and 
advisory  board. 

Need  of   a   Better  Union-  —  It  was  the  fatal  executive 
impotency  of  the  Confederation  which  led  to  the  formation  of  the 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  289 

present  stronger  and  more  complete  government.  The  old  Con- 
tinental Congresses  had  sufficed,  after  a  fashion,  to  keep  the 
colonies  together  so  long  as  the  pressure  of  the  war  continued. 
Throughout  that  war  there  had  been,  despite  much  indifference 
now  and  again  on  the  part  of  some  of  the  colonies  to  their  duty, 
and  of  not  a  little  positive  dereliction  of  plain  obligations,  a 
remarkable  degree  of  energy  and  unity  of  action  among  the  con- 
federated colonists.  But  when  the  pressure  of  the  war  was 
removed  there  was  an  ominous  access  of  indifference,  an  ill- 
boding  decrease  of  respect  for  plighted  faith  between  the  states. 
Signs  fast  multiplied  both  of  the  individual  weakness  of  the 
states  and  of  the  growth  of  threatening  jealousies  between  them. 
A  war  of  tariffs  began  between  neighbor  states  on  the  seaboard, 
notably  between  New  York  and  New  Jersey  and  between  Vir- 
ginia and  Maryland.  In  Massachusetts  there  flared  out,  by 
reason  of  the  poverty  engendered  by  the  war,  a  rebellion  of 
debtors  under  Daniel  Shays  which  it  was  for  a  moment  feared 
the  state  authorities  might  find  it  impossible  to  cope  with.  It 
speedily  became  evident  that,  both  for  the  sake  of  internal  order 
and  of  interstate  peace  and  goodwill,  a  real  central  government 
was  needed.  Central  consultation  would  not  suffice ;  there  must 
be  central  government.  The  Confederation,  therefore,  was  no 
real  advance  upon  the  old  Continental  Congresses.  Before  a 
single  decade  had  passed  over  the  new  government  with  its  fair- 
spoken  Articles  a  new  union  had  been  erected  and  the  real  his- 
tory of  the  United  States  begun. 

The  Constitution  :  Colonial  Precedents.  —  The  present 
Constitution  erects  a  very  different  government.  It  is  the  charter 
of  a  federal  state,  which  has  a  commanding  law  and  an  indepen- 
dent power  of  its  own,  whose  Constitution  and  law  are  the  supreme 
law  of  the  land.  The  Convention  which  framed  the  new  Constitu- 
tion met  in  Philadelphia  in  May,  1787,  and  fused  together  over 
the  slow  fires  of  prolonged  debate  the  elements  of  English  and 
colonial  precedent  which  were  to  constitute  the  government  of 
the  United  States.  In  the  debates  of  that  Convention  during 
that  memorable  summer  are  to  be  read  the  particulars  of  the 
translation  of  English  precedent  into  American  practice  made 
during  the  formative  colonial  period.  Through  the  instrumen- 


290  THE   GOVERNMENT    OF   THE   UNITED   STATES. 

tality  of  the  able  men  who  composed  that  extraordinary  as- 
sembly, the  government  of  the  United  States  was  fitted  out 
with  the  full  experience  of  the  colonies  and  of  the  revolu- 
tionary states.1  It  was  arranged  that  the  legislature  of  the  new 
federal  government  should  consist  of  two  houses,  not  in  direct 
imitation  of  the  English  system,  whose  House  of  Lords  we 
did  not  have  the  materials  for  reproducing,  but  in  conformity 
with  an  almost  universal  example  set  by  the  states.  A  single 
state  furnished  the  precedent  in  accordance  with  which  a  real 
difference  of  character  was  given  to  the  two  houses.  The  lower 
house  of  the  Connecticut  legislature  was  constituted  by  an  equal 
representation  of  the  towns  of  the  state,  while  her  upper  house, 
composed  of  the  governor,  lieutenant-governor,  and  twelve  '  as- 
sistants/ represented  her  people  at  large :  and  Connecticut's 
example  showed  the  Convention  a  convenient  way  of  compro- 
mise by  which  they  could  reconcile  the  two  parties  within  it 
which  were  contending,  the  one  for  an  equal  representation  of 
the  states  in  Congress  after  the  absolute  manner  of  the  Confed- 
eration, the  other  for  a  proportional  representation  of  the  people. 
The  Senate,  it  was  agreed,  should  represent  the  states  equally, 
the  House  of  Representatives  the  people  proportionally.  The 
names  Senate  and  House  of  Representatives  were  to  be  found 
already  in  use  by  several  of  the  states.  The  single  Executive, 
the  President,  was  an  obvious  copy  of  the  state  governors,  many 
of  whom  at  that  time  bore  the  name  of  president ;  his  veto  power 
was  to  be  found  formulated  ready  to  hand  in  the  constitution  of 
New  York ;  a  method  of  impeachment  was  already  prepared  in 
the  constitutions  of  half  a  dozen  states.  Several  states  had  also 
the  office  of  Vice-President.  With  a  fine  insight  into  the  real 
character  of  the  government  which  they  were  constructing,  the 
Convention  provided  that  its  judiciary  should  be  placed,  not 
under  the  President  or  the  houses,  but  alongside  of  them,  upon 

1  In  describing  the  work  of  the  Convention  I  follow  here  Professor  Alex- 
ander Johnston's  admirable  exposition  given  in  the  New  Princeton  Review 
for  September,  1887,  under  the  title  "The  First  Century  of  the  Constitu- 
tion." A  convenient  brief  survey  of  the  chief  features  of  the  state  consti* 
tutions  at  the  time  of  the  formation  of  the  present  government  of  the  UnioD 
may  be  found  in  Hildreth,  Vol.  III.,  Chap.  XUV. 


THE   GOVERNMENT  OF  THE    UNITED   STATES.  291 

a  footing  of  perfect  equality  with  them.  A  similar  arrangement 
obtained  under  the  state  constitutions.  The  function  of  constitu- 
tional interpretation  was  nowhere  explicitly  conferred,  but  existed 
in  the  nature  of  the  case.  It,  necessarily  as  old  as  written  char- 
ters and  constitutions,  was  an  inevitable  corollary  to  their  funda- 
mental proposition  of  a  gift  of  limited  powers.  Written  constitu- 
ent law  is  by  its  very  nature  a  law  higher  than  any  statute  the 
legislature  acting  under  it  can  enact,  and  by  that  law,  as  by  an 
invariable  standard,  must  the  courts  test  all  acts  of  legislation.1 
The  colonial  courts  had  once  and  again  upon  this  principle 
questioned  the  validity  of  colonial  legislation,  and  the  Supreme 
Court  of  the  United  States  had  long  had  a  prototype  in  the 
Judicial  Committee  of  the  Privy  Council,  whose  function  it 
was  to  hear  appeals  from  the  colonies,  and  whose  practice  it 
had  been  to  pronounce  against  all  laws  incompatible  with  the 
royal  charters  (pages  219,  255).* 

When  they  came  to  equip  Congress  with  powers,  the  Con- 
vention adopted  the  plan  of  careful  enumeration.  They  set  out  the 
acts  of  government  which  were  to  be  permitted  to  the  legislature 
of  the  new  government  in  a  distinctly  cast  list  of  eighteen  items. 
Even  in  doing  this,  however,  they  may  be  said  to  have  been  simply 
recording  the  experience  of  the  Confederation.  They  were  giving 
Congress  the  powers  for  lack  of  which  the  Congress  of  the  Con- 
federation had  proved  helpless  and  ridiculous.  It  was  only  when 
they  came  to  construct  the  machinery  for  the  election  of  the  Presi- 
dent that  they  left  the  field  of  American  experience  and  English 
example  and  devised  an  arrangement  which  was  so  original  that 
it  was  destined  to  break  down  almost  as  soon  as  it  was  put  in 
operation. 

It  is  an  instructive  fact  that  the  work  of  the  Convention  was  a 
work  of  selection,  not  a  work  of  creation,  and  that  the  success  of 
their  work  was  not  a  success  of  invention,  always  most  dangerous 
in  government,  but  a  success  of  judgment,  of  selective  wisdom, 
of  practical  sagacity,  —  the  only  sort  of  success  in  politics  which 
can  ever  be  made  permanent. 

1  See  A.  V.  Dicey,  The  Law  of  the  Constitution,  Chap.  Ill ;  and  J.  Bryce, 
The  American  Commonwealth,  Chap.  XXIII. 

2  See  Brinton  Coxe,  Judicial  Power  and  Unconstitutional  Legislation. 


292  THE   GOVERNMENT    OF    THE    UNITED    STATES. 

Character  of  the  New  Government.  —  It  is  one  of  the  dis- 
tinguishing characteristics  of  the  English  race  whose  political 
habit  has  been  transmitted  to  us  through  the  sagacious  generation 
by  whom  this  government  was  erected  that  they  have  never  felt 
themselves  bound  by  the  logic  of  laws,  but  only  by  a  practical 
understanding  of  them  based  upon  slow  precedent.  For  this  race 
the  law  under  which  they  live  is  at  any  particular  time  what  it  is 
then  understood  to  be;  and  this  understanding  of  it  is  compounded 
of  the  circumstances  of  the  time.  Absolute  theories  of  legal 
consequence  they  have  never  cared  to  follow  out  to  their  con- 
clusions. Their  laws  have  always  been  used  as  parts  of  the 
practical  running  machinery  of  their  politics,  —  parts  to  be  fitted 
from  time  to  time,  by  interpretation,  to  existing  opinion  and  social 
condition. 

Character  of  the  Government  Changes  with  Opinion.  — 
It  requires  a  steady,  clear-viewed,  thoroughly  informed  historical 
sense,  therefore,  to  determine  what  was  at  any  given  time  the 
real  character  of  our  political  institutions.  To  us  of  the  present 
day  it  seems  that  the  Constitution  framed  in  1787  gave  birth  in 
1789  to  a  national  government  such  as  that  which  now  constitutes 
an  indestructible  bond  of  union  for  the  states  ;  but  the  men  of  that 
time  would  certainly  have  laughed  at  any  such  idea,  —  and  for  the 
English  race,  as  I  have  said,  every  law  is  what  those  who  admin- 
ister it  think  that  it  is.  The  men  of  1789  meant  to  form  "a  more 
perfect  union  "  than  that  which  had  existed  under  the  Confedera- 
tion :  they  saw  that  for  the  colonies  there  must  be  union  or  disin- 
tegration ;  they  thought  union  needful  and  they  meant  to  have  it 
in  any  necessary  degree.  But  they  had  no  special  love  for  the 
union  which  they  set  about  consummating,  and  they  meant  to 
have  as  little  of  it  as  possible,  —  as  little  as  might  be  compatible 
with  wise  providence. in  respect  of  the  welfare  of  the  new-fledged 
states.  They  were  even  more  afraid  of  having  too  strong  a  cen- 
tral government  than  of  having  one  which  was  too  weak,  and  they 
accepted  the  new  constitution  offered  them  by  the  Convention  of 
1787  because  convinced  of  the  truth  of  the  arguments  urged  by  its 
friends  to  the  effect  that  the  union  would  be  federal  merely  and 
would  involve  no  real  sacrifice  of  individuality  or  autonomy  on 
the  part  of  the  states. 


THK    (inVKKNMENT    OF    THE    UNITED    STATES.  293 

Early  Sentiment  towards  the  Union.  —  It  is  astonishing 
to  us  of  this  generation  to  learn  how  much  both  of  hostility  and 
of  indifference  was  felt  for  the  new  government,  which  we  see  to 
have  been  the  salvation  of  the  country.  Even  those  who  helped 
to  make  it  and  who  worked  most  sincerely  for  its  adoption  enter- 
tained grave  doubts  as  to  its  durability;  some  of  them  even,  in 
despondent  moments,  questioned  its  usefulness.  Philosophic 
statesmen  like  Alexander  Hamilton  supported  it  with  ardent  pur- 
pose and  sustained  hope ;  but  for  the  average  citizen,  who  was  not 
in  the  least  degree  philosophic,  it  was  at  first  an  object  of  quite 
unexciting  contemplation.  It  was  for  his  state,  each  man  felt, 
that  his  blood  and  treasure  had  been  poured  out :  it  was  that 
Massachusetts  and  Virginia  might  be  free  that  the  war  had  been 
fought,  not  that  the  colonies  might  have  a  new  central  government 
set  up  over  them.  Patriotism  was  state  patriotism.  The  states 
were  living,  organic  persons:  the  union  was  an  arrangement, — 
possibly  it  would  prove  to  be  only  a  temporary  arrangement ; 
entirely  new  adjustments  might  have  to  be  made. 

Early  Tolerance  of  Threats  of  Secession.  —  It  is  by  this 
frame  of  mind  on  the  part  of  the  first  generation  that  knew  the 
present  Constitution  that  we  must  explain  the  undoubted  early 
tolerance  for  threats  of  secession.  The  Union  was  too  young  to 
be  sacred ;  the  self-love  of  the  states  was  too  pronounced  to  be 
averse  from  the  idea  that  complete  state  independence  might  at 
any  time  be  resumed.  Discontent  in  any  quarter  was  the  signal 
for  significant  hints  at  possible  withdrawal.  As  the  new  system 
lived  on  from  year  to  year  and  from  year  to  year  approved  itself 
strong  and  effective  it  became  respected ;  as  it  gathered  dignity 
and  force  regard  was  added  to  respect,  until  at  last  the  federal 
government  became  a  rallying  centre  for  great  parties  moved  by 
genuine  national  sentiment.  But  at  first  neither  love  nor  respect 
shielded  the  federal  authorities  from  the  jealousies  and  menaces 
of  the  states.  The  new  government  was  to  grow  national  with 
the  growth  of  a  national  history  and  a  national  sentiment. 

Growth  of  the  National  Idea.  —  The  career  and  fate  of 
the  Federalist  party  very  well  illustrate  the  first  state  of  opinion 
concerning  the  Union.  The  Federalist  party  was  the  party  of 


294  THE   GOVERNMENT    OF    THE   UNITED    STATES. 

the  Constitution,  —  the  party  which  had  been  chiefly  instru- 
mental in  bringing  about  the  adoption  of  the  new  frame  of  gov- 
ernment. Immediately  upon  the  inauguration  of  the  present 
Union  this  party  of  its  friends  was  put  in  charge  of  the  new 
central  body  politic.  It  presided  over  the  critical  period  of  its 
organization,  and  framed  the  first  measures  which  gave  it  finan- 
cial credit,  international  consideration,  security,  and  energy. 
But  it  soon  became  evident  that  the  Federalists  held  views  as  to 
the  nature  of  the  new  government  which  not  all  of  those  who  had 
voted  for  the  adoption  of  the  Constitution  were  willing  to  sanc- 
tion. They -assumed  for  the  federal  authorities  prerogatives  of 
too  great  absoluteness,  and  seemed  to  many  to  be  acting  upon  the 
idea  that  the  purpose  of  the  Constitution  was  to  subordinate,  and 
if  need  be  sacrifice,  state  interests  to  the  interests  of  the  general 
government.  Very  speedily,  therefore,  they  brought  a  reaction 
upon  themselves,  and  were  displaced  by  a  party  which  felt  that 
the  limitations  put  by  the  Constitution  upon  federal  authority 
ought  to  be  very  strictly  observed.  This  new  party,  calling  itself 
'  Democratic-Republican,'  may  be  said  to  have  been  created  by  the 
injudicious  excesses  of  the  Federalists;  and  from  this  point  of 
view  the  Federalist  party  may  be  said  to  have  effected  its  own 
destruction.  After  its  first  national  defeat  it  never  again  came 
into  power.  Rapidly  in  some  places,  slowly  in  others,  it  went 
utterly  to  pieces. 

.  But,  although  the  Federalist  party  was  destroyed,  time 
worked  in  favor  of  its  political  conceptions.  The  Democratic- 
Kepublicans  soon  found  that  success  in  conducting  the  affairs  of 
the  federal  government  was,  even  for  them,  conditioned  upon  a 
very  liberal  reading  of  the  authority  conferred  by  the  Constitu- 
tion ;  and  by  slow  degrees  they  drifted  into  practices  of  '  broad 
construction '  quite  as  abhorrent  to  their  own  first  principles  as 
the  much  berated  measures  of  the  Federalists  had  been.  But  the 
Democratic-Republicans,  —  or  the  Democrats  as  they  were  before 
long  more  briefly  called,  —  had  the  advantage  of  a  corresponding 
change  in  public  opinion.  That,  too,  was  steadily  becoming 
nationalist  in  its  tendencies. 

Railroads,  Expansion,  and  War  aid  the  National  Idea.  — 
So  long  as  the  people  of  one  section  of  the  country  saw  little  or 


THE   GOVERNMENT    OF    THE   UNITED    STATES.  295 

nothing  of  the  people  of  the  other  sections,  separateness  of  feel- 
ing and  localness  of  view  continued  to  exist  and  to  exercise  a 
controlling  force;  the  majority  of  the  people  continued  to  put 
the  states  before  the  nation  in  their  thoughts  and  to  demand 
more  or  less  punctilious  regard  for  state  prerogatives.  But  when 
railroads  began  to  be  built  and  to  multiply ;  when  people  from 
all  parts  of  the  Union  began  to  go  out  and  settle  the  West 
together;  when  seeing  each  other  and  trading  with  each  other 
began  to  make  the  people  of  all  the  states  very  much  alike  in 
most  of  the  greater  things  of  habit  and  institution,  and  even  in 
most  of  the  smaller  things  of  opinion  and  conduct;  when  new 
states  which  had  grown  up  in  the  West  without  any  of  the  old 
conservative  colonial  traditions  began  to  be  admitted  to  the  Union 
in  increasing  numbers,  regarding  themselves  as  born  in  and  of 
the  Union ;  when  a  second  war  with  England  and  a  hot  struggle 
with  Mexico  had  tested  the  government  and  strengthened  a  sen- 
timent of  national  patriotism,  —  then  at  length  it  began  to  be 
very  generally  thought  that  the  Federalists  had  been  right  after 
all ;  that  the  federal  government  ought  to  come  first  in  considera- 
tion, even  at  the  cost  of  some  state  pride. 

Slavery  stands  in  the  Way  of  Nationality.  —  What  stood 
most  in  the  way  of  the  universal  growth  of  this  sort  of  national 
feeling  was  the  great  difference  between  the  northern  and  southern 
portions  of  the  Union  caused  by  the  existence  of  slavery  in  the 
South.  So  long  as  the  laborers  in  the  South  were  slaves  and  those 
of  the  North  free  men,  these  two  sections  could  not  become  like 
one  another  either  socially  or  politically,  and  could  not  have  the 
same  national  feeling.  The  North  and  Northwest  meant  one 
thing  when  they  spoke  of  the  nation ;  while  the  South  meant  quite 
another  thing.  Each  meant  a  nation  socially  and  politically  like 
itself.  The  two  sections,  therefore,  rapidly  became  dissatisfied 
with  living  together  under  the  same  political  system,  and  the  seces- 
sion so  much  talked  about  in  various  quarters  in  the  earlier  days 
of  the  Union  at  last  became  a  reality.  Inevitably  came  the  war  of 
secession,  by  means  of  whose  fiery  processes  the  differences  of  insti- 
tution between  North  and  South  were  to  be  swept  utterly  away. 

Civil  War  completes  the  Union.  —  The  war  wrought 
changes  of  the  most  profound  character.  Secession  was  pre- 


296          THE   GOVERNMENT   OF   THE  UNITED   STATES. 

vented,  the  Union  was  preserved,  and  slavery  was  forever 
abolished;  these  were  the  immediate  effects  of  the  struggle. 
But  the  remoter  results  were  even  more  important.  They  pene- 
trated to  the  changing  of  the  very  nature  of  the  Union,  though 
the  form  of  the  federal  government  remained  in  all  essential  feat- 
ures unaltered.  The  great  effect  of  the  war  was,  that  the  nation 
was  made,  in  social  institutions,  at  last  homogeneous.  There 
was  no  longer  any  permanent  reason  why  the  South  should  not 
become  like  the  rest  of  the  country  in  character  and  sentiment. 
Both  sections  were  brought  to  the  same  modes  of  life  and  thought ; 
there  was  no  longer  any  legal  obstacle  to  their  being  in  reality  one 
great  nation.  The  effort  made  in  the  war,  moreover,  to  preserve 
the  Union,  and  the  result  of  the  war  in  making  the  country  at 
last  socially  homogeneous  throughout,  has  made  the  federal  gov- 
ernment, as  the  representative  of  the  nation,  seem  greater  in  our 
eyes  than  ever  before,  and  has  permanently  modified  in  the  pro- 
foundest  manner  the  way  in  which  all  the  old  questions  concern- 
ing constitutionality  and  state  rights  are  regarded. 

Present  Character  of  the  Union.  —  It  by  no  means  fol- 
lows that  because  we  have  become  in  the  fullest  organic  sense 
a  nation,  ours  has  become  a  unitary  government,  its  federal  feat- 
ures merged  in  a  new  national  organization.  The  government 
of  the  Union  has  indeed  become  permanent,  the  cherished  repre- 
sentative, the  vital  organ  of  our  life  as  a  nation ;  but  the  states 
have  not  been  swallowed  up.  Their  prerogatives  are  as  essential 
to  our  system  as  ever,  —  are  indeed  becoming  more  and  more 
essential  to  it  from  year  to  year  as  the  already  vastly  complex 
organism  of  the  nation  expands.  But,  instead  of  regarding  the 
government  of  the  United  States  and  the  government  of  a  state 
as  two  governments,  as  our  fathers  did,  we  now  regard  them,  — 
if  we  may  make  a  matter-of-fact  analysis  of  our  working  views  in 
politics,  —  as  two  parts  of  one  and  the  same  government,  two 
complementary  parts  of  a  single  system.  The  value  of  the  plan 
of  government  which  our  statesmen  adopted  at  the  first,  the  plan 
of  functions  divided  between  national  and  state  authorities,  has 
depreciated  not  a  whit :  we  are  only  a  little  less  anxious  about 
the  clearness  of  the  lines  of  division.  The  national  government 


THE   GOVERNMENT    OF    THE   UNITED    STATES.  297 

still  has  its  charter,  somewhat  enlarged  since  the  war,  but  sub- 
stantially the  same  document  as  of  old ;  and  the  national  authori- 
ties must  still  confine  themselves  to  measures  within  the  sanction 
of  that  charter.  The  state  governments,  too,  still  have  their 
charters,  and  still  have  valid  claim  to  all  powers  not  specifically 
delegated  to  the  government  of  the  Union.  Liberal  construction 
of  the  federal  charter  the  nation  wants,  but  not  a  false  construc- 
tion of  it.  The  nation  properly  comes  before  the  states  in  honor 
and  importance,  not  because  it  is  more  important  than  they  are 
but  because  it  is  all  important  to  them  and  to  the  maintenance  ol 
every  principle  of  government  which  we  have  established  and 
still  cherish.  The  national  government  is  the  organic  frame  of 
the  states :  it  has  enabled,  and  still  enables,  them  to  exist. 

Present  Character  of  the  Government  of  the  Union. — 
It  is  perhaps  most  in  accordance  with  the  accomplished  results 
of  our  national  development  to  describe  the  government  of  the 
United  States,  not  as  a  dual  government,  but  as  a  double  govern- 
ment, so  complete  is  the  present  integration  of  its  state  and  fed- 
eral parts.  Government  with  us  has  ceased  to  be  plural  and  has 
become  singular,  the  government  of  the  United  States.  Distinct 
as  are  its  parts,  they  are  not  separate.  The  state  and  federal 
systems  are  so  adjusted  under  our  public  law  that  they  may  not 
only  operate  smoothly  and  effectively  each  in  the  sphere  which  is 
exclusively  its  own,  but  also  fit  into  each  other  with  perfect  har- 
mony of  cooperation  wherever  their  jurisdictions  cross  or  are 
parallel,  acting  as  parts  of  one  and  the  same  frame  of  govern- 
ment, with  an  uncontested  subordination  of  functions  and  an 
undoubted  common  aim. 

Although  these  two  parts  of  our  government  are  thus 
vitally  united,  however,  thus  integrated  into  what  is  in  reality 
a  single  scheme  of  government,  state  law  by  no  means  depends 
upon  federal  law  for  its  sanction.  The  Constitution  of  the 
United  States  and  the  laws  and  treaties  passed  in  pursuance 
thereof  are  indeed  the  supreme  law  of  the  land,  but  their  su- 
prejnacy  does  not  trench  upon  or  displace  the  self-originated 
authority  of  the  states  in  the  immensely  important  sphere  re- 
served to  them.  Although  it  is  true,  taking  our  system  as  a 


298  THE   GOVERNMENT    OF   THE   UNITED    STATES. 

whole,  that  the  governments  of  the  states  are  subordinate  in  om 
political  order  to  the  government  of  the  Union,  they  are  not  sub* 
ordinate  in  the  sense  of  being  subject  to  be  commanded  by  it,  but 
only  in  being  less  than  national  in  their  jurisdiction. 

The  States  not  Administrative  Divisions  but  Constituent 
Members  of  the  Union.  — The  common  and  convenient  distinction 
between  central  and  local  government  furnishes  here  no  appropri- 
ate ground  of  discrimination.  A  central  government,  as  contra- 
distinguished from  a  local  government  within  the  meaning  of 
that  distinction,  is  a  government  which  prescribes  both  the  con- 
stitution and  the  mode  of  action  of  the  lesser  organs  of  the  sys- 
tem to  which  it  belongs.  This  the  governments  of  the  states  do 
with  reference  to  the  townships,  the  counties,  the  cities  within 
their  territories:  these  local  bodies  are  merely  administrative 
divisions  of  the  states,  agencies  delegated  to  do  the  daily  work 
of  local  government.  But  there  is  no  such  relationship  between 
the  federal  government  and  the  states.  They  are  not  adminis- 
trative divisions  but  constituent  members  of  the  Union,  coordi- 
nate with  the  Union  in  their  powers,  in  no  sense  subject  to  it 
in  their  appropriate  spheres.  They  are  excluded,  indeed,  by  the 
federal  Constitution  from  the  exercise  of  certain  functions,  but 
the  great  and  all-important  functions  which  they  do  exercise 
are  not  given  them  by  that  Constitution  :  they  are  exercised,  on 
the  contrary,  upon  the  completest  principles  of  self-direction. 
We  may  properly  distinguish  the  government  of  a  county  and 
the  government  of  a  state  by  the  distinction  between  local  and 
central  government,  but  not  the  government  of  a  state  and  the 
government  of  the  Union. 

CHARACTER,  ORGANS,  AND  FUNCTIONS  OF  THE  STATES. 

The  States  properly  come  first  in  a  description  of  the 
government  of  this  country,  not  only  because  it  was  in  conform- 
ity with  state  models  and  precedents  that  the  federal  government 
was  constructed,  but  also  and  more  particularly  because  the  great 
bulk  of  the  business  of  government  still  rests  with  the  state 
authorities.  The  states  still  carry  by  far  the  greater  part  of 
the  weight  of  the  governing  function,  still  constitute  the  ordinary 


THE   GOVERNMENT    OF    THE   UNITED    STATES.  299 

fountains  of  justice  and  of  legal  right,  still  stand  nearest  the 
people  in  the  regulation  of  all  their  social  and  legal  relation- 
ships. Like  the  Swiss  Cantons,  our  states  have  given  to  the 
government  which  binds  them  together  their  own  forms  of  con- 
stitution. Even  more  than  the  Cantons,  our  states  have  re- 
tained their  right  to  rule  their  citizens  in  all  ordinary  matters 
without  federal  interference.  They  are  the  chief  creators  of  law 
among  us.  They  are  the  chief  constituent  units  of  our  political 
system  not  only,  but  are  also  self-directive  units.  They  make  up 
the  mass,  the  body,  the  constituent  tissue,  the  organic  stuff  of  the 
government  of  the  country.  "  The  federal  government,"  as  Tocque- 
ville  said,  "is  the  exception;  the  government  of  the  states  is  the 
rule."  To  them  is  intrusted  our  daily  welfare,  to  the  federal  gov- 
ernment only  certain  collective  interests.  Upon  the  character  of  the 
state  governments  depends  the  character  of  the  nation  in  its  several 
constituent  members ;  upon  the  character  of  the  federal  govern- 
ment depends  the  character  of  the  nation  as  a  whole.  If  we  are 
to  begin  our  study  of  our  institutions  at  the  centre,  at  the  heart 
of  self-government,  we  must  begin  with  the  states. 

The  Law  of  the  States :  its  Character.  —  The  law  of  each 
state  consists  of  two  great  parts,  (1)  the  Constitution,  statutes,  and 
treaties  of  the  United  States  and  (2)  the  constitution  and  statutes 
of  the  state.  The  Constitution,  statutes,  and  treaties  of  the  United 
States  are  the  supreme  law  of  the  land  not  so  much  in  the  sense 
of  being  set  above  the  constitutions  and  laws  of  the  states  as  in 
the  sense  of  being,  by  virtue  of  the  principles  of  our  public  law, 
integral  parts  of  the  law  of  the  states.  The  constitutions  of 
several  of  the  states  explicitly  declare  the  Constitution  of  the 
United  States  to  be  a  part  of  their  fundamental  law :  but  such 
declarations  are  only  formal  recognitions  of  a  principle  now  in  all 
cases  indubitable.  On  their  legal  as  well  as  on  their  political  side 
the  two  parts  of  our  system  have  been  completely  integrated. 
Upon  the  state  courts  as  well  as  upon  the  courts  of  the  United 
States  rests  the  duty  of  administering  federal  law.  The  federal 
Constitution  is  a  negative  portion  of  state  law  in  respect  of  the 
limitations  which  it  sets  to  the  sphere  of  state  activity ;  but  the 
laws  passed  by  Congress  under  the  authority  of  that  Constitu- 
tion are  also  positive  portions  of  state  law,  whose  mandates  all 


300  THE   GOVEBNMENT   OF   THE  UNITED   STATES. 

officers  of  government,  whether  state  or  federal,  are  bound  to 
obey. 

The  constituted  authorities  of  the  states  do  not  stand  in 
the  same  relation,  however,  to  the  Constitution  and  laws  of  the 
Union  that  they  bear  to  state  law.  Of  state  law  they  are  the 
final  interpreters,  but  of  federal  law  they  are  only  provisional  in- 
terpreters. In  acting  upon  federal  law  state  officers  always  act 
subject  to  the  supervision  of  the  federal  tribunals. 

The  functions  of  the  state  courts  with  regard  to  the  inter- 
pretation of  federal  law  very  forcibly  illustrate  the  adjustments  of  our 
system.  If  in  any  case  brought  in  a  state  court  the  question  arise  whether 
a  certain  state  law  involved  in  the  case  is  or  is  not  in  violation  of  the  Con- 
stitution of  the  United  States,  the  court  may  freely  give  its  judgment  upon 
the  question,  and  if  its  judgment  be  that  the  state  law  is  not  constitutional 
that  judgment  is  conclusive.  If,  however,  it  should  declare  the  law  to  be 
in  agreement  with  the  federal  Constitution,  its  opinion  may  be  cited  to  a 
federal  tribunal  for  revision.  The  federal  law  is,  thus,  not  regarded  as  a 
thing  apart  from  the  law  of  a  state,  too  sacred  to  be  handled  by  any  but 
the  federal  courts,  its  specially  constituted  guardians :  it  is  a  part  of  state 
law  and  the  state  courts  may  declare  and  apply  its  principles.  But  in  the 
last  resort  the  federal  courts  must  themselves  shield  it  from  a  too  liberal 
or  too  prejudiced  judgment  by  state  judges,  who  may  very  conceivably 
be  interested  to  vindicate  the  statutes  of  their  state  as  against  any  objec- 
tions drawn  from  the  law  of  the  Union.  Both  for  the  sake  of  making  it 
uniform  and  for  the  sake  of  keeping  it  supreme  federal  law  must  receive 
its  final  adjudication  in  its  own  courts. 

Scope  of  State  Law. — A  moment's  thought  suffices  to 
reveal  how  very  great  a.  field  of  activity,  how  preponderant  a  part 
remains  under  our  system  to  the  states.  The  powers  of  the  fed- 
eral government  seem  great  by  enumeration.  Besides  being  in- 
trinsically powers  of  the  greatest  importance,  they  are  made  the 
more  imposing  in  the  Constitution  by  the  fact  of  their  being  set 
forth  in  an  exhaustive  list.  The  residuum  of  powers  that  remains 
to  the  states,  consisting  as  it  does  of  unenumerated  items,  is 
vague,  and  because  vague  seems  unimportant  by  comparison. 
A  moment's  examination  of  this  residuum  however,  a  moment's 
consideration  of  its  contents,  puts  a  very  different  face  on  the 
matter.  It  is  worth  while  for  the  sake  of  an  adequate  under- 
standing of  the  real  division  of  powers  under  our  government  to 


THE  GOVERNMENT  OF  THE  UNITED  STATES.     'J01 

give  to  the  powers  remaining  with  the  states  something  like  the 
same  setting  forth  that  is  given  to  those  granted  to  the  Union. 

Legislative  Powers  of  the  Union.  —  The  Constitution  of 
the  United  States  grants  to  Congress  first  of  all  the  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises  for  the  support  of 
the  government  of  the  Union,  the  payment  of  its  debts,  and  the 
promotion  of  the  common  defence  and  welfare,  and  also  the  power 
to  borrow  money  on  the  credit  of  the  United  States ;  but  these 
powers  of  taxation  and  borrowing  belong  also  to  the  states,  except 
that  they  must  raise  their  revenues  without  resort  to  duties,  im- 
posts, and  excises,  the  privilege  of  imposing  these  being  reserved 
to  the  Union  exclusively.  The  powers  which  distinguish  the 
general  government  from  the  governments  of  the  states  are  not 
these  powers  of  raising  money  but  these  others :  To  control  the 
monetary  system  of  the  country,  to  maintain  post-offices  and  post- 
roads,  to  grant  patents  and  copyrights,  to  deal  with  crimes  com- 
mitted on  the  high  seas  or  against  the  law  of  nations,  to  shape  the 
foreign  relations  of  the  country,  to  declare  war  and  control  the 
military  forces  of  the  nation,  and  to  regulate  commerce  both  with 
foreign  countries  and  among  the  states.  It  is  empowered  also  to 
establish  uniform  rules  of  naturalization  and  uniform  laws  concern- 
ing bankruptcy ;  but  these  powers  do  not  belong  to  it  exclusively. 
In  case  Congress  does  not  act  in  these  matters,  the  states  may 
adopt  laws  for  themselves  concerning  them.  All  the  powers  of 
the  general  government  are  plainly  such  as  affect  interests  which 
it  would  be  impossible  to  regulate  harmoniously  by  any  scheme 
of  separate  state  action,  and  only  such ;  all  other  powers  whatever 
remain  with  the  states. 

Powers  withheld  from  the  States.  —  Some  powers,  it  is 
true,  the  Constitution  of  the  United  States  expressly  withholds 
from  the  states,  besides  those  granted  exclusively  to  the  general 
government.  No  state  may  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobility ;  no  state  may,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties,  keep  troops  or  ships  of  war  in  time  of 
peace,  enter  into  any  agreement  with  another  state  or  with  a 
foreign  power,  or  engage  in  war  unless  actually  invaded  or  in  such 
immediate  danger  as  will  not  admit  of  delay.  But  these  prohibi 


802  THE   GOVERNMENT   OF   THE  UNITED   STATES. 

tious  obviously  curtail  scarcely  at  all  the  sphere  which  the  states 
would  in  any  case  normally  occupy  within  the  scheme  of  federal 
union. 

Powers  left  with  the  States.  —  Compared  with  the  vast 
prerogatives  of  the  state  legislatures,  these  limitations  seem 
small  enough.  All  the  civil  and  religious  rights  of  our  citizens 
depend  upon  state  legislation ;  the  education  of  the  people  is 
in  the  care  of  the  states ;  with  them  rests  the  regulation  of  the 
suffrage ;  they  prescribe  the  rules  of  marriage,  and  the  legal  rela- 
tions of  husband  and  wife,  of  parent  and  child  ;  they  determine  the 
powers  of  masters  over  servants  and  the  whole  law  of  principal 
and  agent,  which  is  so  vital  a  matter  in  all  business  transactions ; 
they  regulate  partnership,  debt  and  credit,  and  insurance ;  they 
constitute  all  corporations,  both  private  and  municipal,  except 
such  as  specially  fulfil  the  financial  or  other  specific  functions  of 
the  federal  government ;  they  control  the  possession,  distribution, 
and  use  of  property,  the  exercise  of  trades,  and  all  contract 
relations ;  and  they  formulate  and  administer  all  criminal  law, 
except  only  that  which  concerns  crimes  committed  against  the 
United  States,  on  the  high  seas,  or  against  the  law  of  nations. 
Space  would  fail  in  which  to  enumerate  the  particular  items  of 
this  vast  range  of  power ;  to  detail  its  parts  would  be  to  catalogue 
all  social  and  business  relationships,  to  set  forth  all  the  founda- 
tions of  law  and  order. 

A  striking  illustration  of  the  preponderant  part  played  by  state 
law  under  our  system  is  supplied  in  the  surprising  fact  that  only  one  out 
of  the  dozen  greatest  subjects  of  legislation  which  engaged  the  public 
mind  in  England  during  the  nineteenth  century  would  have  come  within  the 
powers  of  the  federal  government  under  the  Constitution  as  it  stood  before 
the  war,  only  two  under  the  Constitution  as  it  stands  since  the  addition  of 
the  war  amendments.  I  suppose  that  I  am  justified  in  singling  out  as 
these  twelve  greatest  subjects  of  legislation  the  following :  Catholic  eman- 
cipation, parliamentary  reform,  the  abolition  of  slavery,  the  amendment 
of  the  poor-laws,  the  reform  of  municipal  corporations,  the  repeal  of  the 
corn  laws,  the  admission  of  the  Jews  to  Parliament,  the  disestablishment 
of  the  Irish  church,  the  alteration  of  the  Irish  land  laws,  the  establishment 
of  national  education,  the  introduction  of  the  ballot,  and  the  reform  of  the 
criminal  law.  Of  these  every  one  except  the  corn  laws  and  the  abolition 
of  slavery  would  have  been  under  our  system,  so  far  as  they  could  be 
dealt  with  at  all,  subjects  for  state  regulation  entirely ;  and  it  was  only 


THE  GOVERNMENT   OF  THE   UNITED   STATES.  303 

by  constitutional  amendment  made  in  recognition  of  the  accomplished 
facts  of  the  war  that  slavery,  which  was  formerly  a  question  reserved 
for  state  action,  and  for  state  action  alone,  was  brought  within  the  field 
of  the  federal  authority.1 

Non-constitutional  Provisions  in  State  Constitutions. — 
One  of  the  most  characteristic  circumstances  connected  with  our 
state  law  is  the  threatened  loss  of  all  real  distinction  between 
constitutional  and  ordinary  law.  Constitutions  are  in  their 
proper  nature  bodies  of  law  by  which  government  is  constituted, 
by  which,  that  is,  government  is  given  its  organization  and 
functions.  Private  law,  the  regulation  of  the  relations  of  citi- 
zens to  each  other  in  their  private  capacities,  does  not  fall 
within  their  legitimate  province.  This  principle  is  fully  recog- 
nized in  the  construction  of  our  federal  Constitution,  which 
is  strong  and  flexible  chiefly  because  of  its  great,  its  admirable 
simplicity  and  its  strictly  constitutional  scope.  But  constitution- 
making  in  the  states,  especially  in  the  newer  states,  has  pro- 
ceeded upon  no  such  idea.  Not  only  do  the  constitutions  of 
the  states  go  very  much  more  into  detail  in  their  prescriptions 
touching  the  organization  of  the  government;  they  go  far  beyond 
organic  provisions  and  undertake  the  ordinary,  but  very  different, 
work  of  legislative  enactment.  They  commonly  embody  regula- 
tions, for  example,  with  reference  to  the  management  of  state 
property,  such  as  canals  and  roads,  and  for  the  detailed  adminis- 
tration of  the  state  debt ;  they  determine  the  amounts  and  sorts 
of  property  which  are  to  be  exempt  from  seizure  for  private 
debt ;  they  formulate  sumptuary  laws,  such  as  those  forbidding 
the  sale  of  intoxicating  liquors ;  at  a  score  of  points  they  enter 
without  hesitation  or  restraint  the  field  usually  reserved  for  the 
action  of  legislative  bodies. 

Distrust  of  Legislation.  —  The  motive  is  dissatisfaction 
with  legislation,  distrust  of  legislators,  a  wish  to  secure  for  cer- 
tain classes  of  law  a  greater  permanency  and  stability  than  is 
vouchsafed  to  statutes,  which  stand  in  constant  peril  of  altera- 

1  Compare  J.  F.  Jameson,  Introduction  to  the  Constitutional  and  Political 
History  of  the  Individual  States,  Johns  Hopkins  University  Studies  in  His- 
torical and  Political  Science,  4th  Series,  p.  9  (continuous  p.  189). 


304     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

tion  or  repeal.  A  further  motive  is  the  desire  to  give  to  such 
laws  the  sanction  of  a  popular  vote.  It  is  the  almost  universal 
practice  throughout  the  Union  to  submit  constitutional  provisions 
to  a  vote  of  the  people ;  and  the  non-constitutional  provisions 
which  are  becoming  so  common  in  our  constitutions  are  virtually 
only  ordinary  laws  submitted  to  popular  sanction  and  so  placed, 
along  with  the  rest  of  the  instrument  of  which  they  form  incon- 
gruous parts,  beyond  the  liability  of  being  changed  otherwise 
than  through  the  acquiescence  of  the  same  ultimate  authority. 
The  practice  perhaps  discovers  a  tendency  towards  devising 
means  for  making  all  very  important  legal  provisions  dependent 
upon  direct  popular  participation  in  the  process  of  enactment. 

The  objections  to  the  practice  are  as  obvious  as  they  are 
weighty.  General  outlines  of  organization,  such  as  the  Consti- 
tution of  the  United  States  contains,  may  be  made  to  stand  with- 
out essential  alteration  for  long  periods  together ;  .but,  in  propor- 
tion as  constitutions  make  provision  for  interests  whose  aspects 
must  change  from  time  to  time  with  changing  circumstance,  they 
enter  the  domain  of  such  law  as  must  be  subject  to  constant 
modification  and  adaptation.  Not  only  must  the  distinctions 
between  constitutional  and  ordinary  law  hitherto  recognized  and 
valued  tend  to  be  fatally  obscured,  but  the  much  to  be  desired 
stability  of  constitutional  provisions  must  in  great  part  be  sacri- 
ficed. Those  constitutions  which  contain  the  largest  amount  of 
extraneous  matter,  which  does  not  concern  at  all  the  structure  or 
functions  of  government,  but  only  private  or  particular  interests, 
must  of  course,  however  carefully  drawn,  prove  subject  to  most 
frequent  change.  In  some  of  our  states,  accordingly,  constitu- 
tions have  been  as  often  changed  as  important  statutes.  The 
danger  is  that  constitution-making  will  become  with  us  only  a 
cumbrous  mode  of  legislation. 

Distrust  of  the  legislatures  is  further  indicated  by  the  intro- 
duction in  several  states  of  the  initiative  and  the  referendum  for 
ordinary  laws.  By  the  former  a  certain  percentage  of  the  elec- 
torate may  initiate  legislation  by  a  petition  which,  when  properly 
signed  and  forwarded  to  the  Secretary  of  State,  compels  the  sub- 
mission to  popular  vote  of  the  measure  set  out  in  the  petition. 
By  the  referendum  a  certain  percentage  of  the  electorate,  gener- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.     305 

ally  smaller  than  in  the  case  of  the  initiative,,  may  compel  the 
submission  to  popular  vote  of  a  measure  already  passed  by  the 
legislature. 

The  objections  to  the  initiative  and  the  referendum  are  that 
they  assume  a  discriminating  judgment  and  a  fullness  of  infor- 
mation on  the  part  of  the  people  touching  questions  of  public  pol- 
icy which  they  do  not  often  possess,  and  that  it  lowers  the  sense 
of  responsibility  on  the  part  of  legislators.  In  their  behalf  it 
may  be  urged  that  they  enable  the  people  to  pass  good  measures 
and  to  kill  bad  ones  and  that  their  educational  value  is  large. 

Constitutional  Amendments.  —  The  amendment  of  state 
constitutions,  like  the  amendment  of  the  federal  Constitution,  can 
be  effected  only  by  elaborate,  formal,  and  unusual  processes  which 
are  meant  to  hedge  the  fundamental  law  about  with  a  greater 
dignity  and  sanctity  than  attaches  to  any  other  body  of  legal 
precepts.  The  theory  of  our  whole  constitutional  arrangement 
is,  that  the  people  have  not  only,  in  establishing  their  constitu- 
tions, bound  their  agents,  the  governing  bodies  and  officials  of 
the  states,  but  have  also  bound  themselves,  —  have  bound  them- 
selves to  change  the  fundamental  rules  which  they  have  made 
only  by  certain  formal  and  deliberate  processes  which  must  mark 
the  act  of  change  as  at  once  solemn  and  fully  advised. 

The  distinction  between  constitutional  provisions  and  ordinary 
laws  is  further  lessened  in  those  states  which  have  adopted  the 
initiative  and  the  referendum  both  for  constitution  making  and 
amending  and  for  the  passage  of  ordinary  laws.  By  their  intro- 
duction the  formal  difference  between  the  constitution  and  a 
statute,  adopted  through  their  use,  has  been  very  largely  removed. 

In  England,  constitutional  amendment  is  not  distinguishable 
from  simple  legislation  (page  216).  Parliament  may,  by  simple 
Act,  change  any,  even  the  most  fundamental,  principle  of  govern- 
ment that  the  deliberate  ojfinion  of  the  nation  wishes  to  see 
changed.  Where  the  constitution  consists  for  the  most  part  of 
mere  precedent,  and  for  the  rest  of  Acts  of  Parliament  or  royal 
ordinances  simply,  it  may  be  altered  as  easily  as  precedent  may  be 
departed  from.  In  England  that  is  not  easily.  The  great  con- 
servative force  there  is  the  difficulty  with  which  Englishmen 
abandon  established  courses. 


306     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

In  France  constitutional  amendment  differs  from  ordinary 
legislation  only  in  this,  that  the  two  chambers  must  sit  together 
at  Versailles,  as  a  single  National  Assembly,  when  passing  laws 
which  affect  the  constitution  (page  156). 

In  Germany  constitutional  amendment  differs  from  ordinary 
legislation  only  in  the  number  of  votes  required  for  the  passage 
of  an  amendment  through  the  Bundesrath,  in  which  fourteen 
negative  votes  will  defeat  it.  In  the  United  States,  on  the  con- 
trary, constitutional  amendment  differs  from  ordinary  legislation 
both  in  formal  procedure  and  in  the  political  powers  called  into 
action  to  effect  it. 

Preliminary  Steps  of  Amendment.  —  Legislatures,  with 
us,  cannot  of  themselves  undertake  any  general  revision  of  the 
fundamental  law.  In  case  a  general  revision  of  a  state  constitu- 
tion is  sought  to  be  effected,  the  legislature  is  empowered  to  pro- 
pose the  calling  of  a  popular  convention  to  be  chosen  specially 
for  the  purpose ;  the  question  whether  or  not  such  a  convention 
shall  be  called  must  be  submitted  to  the  people ;  if  they  vote  for 
its  being  summoned,  it  is  elected  by  the  usual  suffrage ;  it  meets 
and  undertakes  the  revision,  and  then  usually  submits  the  results 
of  its  labors  to  the  popular  vote,  which  may  either  accept  those 
results,  or  reject  them  and  fall  back  upon  the  old  constitutional 
arrangements. 

In  many  of  the  states  a  proposition  for  the  calling  of  such  a 
convention  may  be  submitted  to  the  people  only  if  adopted  by  a 
two-thirds  vote  of  both  houses  of  the  legislature.  The  new  state 
constitution,  adopted  in  South  Carolina  (1895)  and  in  Delaware 
(1897)  were  not  submitted  to  the  popular  vote,  but  were  promul- 
gated as  law  by  the  conventions  which  framed  them.  This 
method  of  adoption  was  once  not  uncommon ;  but  it  is  now  very 
unusual. 

Proposal  of  Amendments.  —  Legislatures  may,  however, 
themselves  propose  particular  amendments  to  constitutional  pro- 
visions. In  some  of  the  states  a  mere  majority  vote  suffices  for 
the  preliminary  adoption  of  amendments  by  the  legislature, 
though  in  most  states  larger  majorities,  ranging  from  three-fifths 
of  a  quorum  to  two-thirds  of  all  the  elected  members  of  each 
house,  must  be  obtained.  But  in  almost  all  cases  popular  sane- 


THE   GOVERNMENT   OF   THE    IM  I  i;U    STATES.          307 

tion  must  follow :  a  vote  of  the  people  being  made  an  indispen- 
sable condition  precedent  to  the  incorporation  of  an  amendment 
in  the  fundamental  law.  In  many  states,  indeed,  amendments 
proposed  thus  by  the  legislature  must  be  adopted  by  two  succes- 
sive legislatures,  besides  receiving  the  people's  sanction,  before 
they  can  become  part  of  the  constitution.  In  some  a  popular  vote 
intervenes  between  the  two  legislative  adoptions  which  must  be 
had  before  the  desired  amendment  is  effected.  In  Delaware 
amendments  may  be  made  without  a  popular  vote,  if  adopted 
by  a  two-thirds  vote  in  two  successive  legislatures,  a  renewal  of 
the  representative  house  by  election  intervening. 

In  some  of  the  states  amendments  to  the  constitution  can  also 
be  proposed  by  the  initiative  of  the  people  and  when  so  proposed 
must  be  submitted  to  popular  vote  and,  if  adopted,  become  part 
of  the  constitution  without  the  participation  of  the  legislature. 

The  details  of  these  processes  differ  widely  in  different  states. 
In  Vermont  only  the  senate  can  propose  amendments,  and  it  only 
at  intervals  of  ten  years.  In  Connecticut  amendments  can  be 
originated  only  by  the  house  of  representatives.  Various  restric- 
tions, too,  are  in  many  of  the  states  put  upon  the  number  of 
clauses  of  the  constitution  to  which  amendments  can  be  proposed 
at  any  single  legislative  session,  the  number  of  times  amend- 
ments may  be  submitted  to  the  people  within  a  specified  term 
of  years,  and  the  method  to  be  followed  in  the  popular  vote 
when  more  than  one  amendment  is  submitted.  In  most  states, 
too,  special  popular  majorities  are  required  for  the  adoption  of 
all  constitutional  changes. 

These  processes  of  amendment  have  been  found  by  no  means 
so  difficult  as  they  seem.  The  habit  of  inserting  in  state  consti- 
tutions enactments  not  properly  belonging  with  constitutional 
provisions,  and  which  must  be  subject  to  frequent  alteration,  has 
led  to  frequent  appeals  to  the  people  for  purposes  of  amendment, 
and  has  served  to  show  how  easy  amendment  may  be  made.  So 
easy  and  normal,  indeed,  have  appeals  to  the  people  in  state 
affairs  become  that  the  constitution  of  New  Hampshire  goes  the 
length  of  providing  for  the  submission  to  the  vote  of  the  people 
every  seven  years  of  the  question  whether  or  not  the  state  con- 
stitution shall  be  revised  by  a  convention  called  for  the  purpose, 


808    THE  GOVERNMENT  OF  THE  UNITED  STATES. 

while  that  of  Iowa  commands  the  submission  of  the  same  ques- 
tion to  the  people  every  ten  years,  that  of  Michigan  every  sixteen 
years ;  and  the  constitutions  of  New  York,  Ohio,  Oklahoma,  and 
Maryland  direct  its  submission  every  twenty  years. 

Conflict  of  Laws.  —  The  plan  of  leaving  to  the  states  the 
regulation  of  all  that  portion  of  the  law  which  most  nearly  touches 
our  daily  interests,  and  which  in  effect  determines  the  whole 
structure  of  society,  the  whole  organic  action  of  industry  and 
business,  has  some  very  serious  disadvantages :  disadvantages 
which  make  themselves  more  and  more  emphatically  felt  as 
modern  tendencies  of  social  and  political  development  more  and 
more  prevail  over  the  old  conservative  forces.  When  the  Consti- 
tution of  the  Union  was  framed  the  states  were  practically  very 
far  distant  from  one  another.  Difficulties  of  travel  very  greatly 
restricted  intercourse  between  them :  being,  so  to  say,  physically 
separate,  it  was  no  inconvenience  that  they  were  also  legally  sepa- 
rate. But  now  that  the  railroad  and  the  telegraph  have  made 
the  country  small  both  to  the  traveller  and  to  the  sender  of  mes- 
sages the  states  have  been  geographically  and  socially  compacted. 
Above  all,  they  have  been  commercially  and  industrially  knit 
together.  State  divisions,  it  turns  out,  are  not  natural  economic 
divisions ;  they  practically  constitute  no  boundaries  at  all  to  any 
distinctly  marked  industrial  regions.  Variety  and  conflict  of 
laws,  consequently,  have  brought  not  a  little  friction  and  confu- 
sion into  our  social  and  business  arrangements. 

Detrimental  Effects.  —  At  some  points  this  diversity  and 
multiformity  of  law  almost  fatally  affect  the  deepest  and  most 
abiding  interests  of  the  national  life.  Above  all  things  else,  it 
has  touched  the  marriage  relation,  that  tap-root  of  all  social 
growth,  with  a  deadly  corruption.  Not  only  has  the  marriage  tie 
been  very  greatly  relaxed  in  some  of  the  states,  while  in  others  it 
retains  its  old-time  tightness,  so  that  the  conservative  rules  which 
jealously  guarded  the  family,  as  the  heart  of  the  state,  promise 
amid  the  confusion  to  be  almost  forgotten;  but  diversities  be- 
tween state  and  state  have  made  possible  the  most  scandalous 
processes  of  collusive  divorce  and  fraudulent  marriage. 

In  the  Matter  of  Taxation  so  great  a  variety  of  law 
obtains  among  the  states  as  to  preclude  in  part  a  normal  and 


THE   GOVERNMENT   OF   THE    UNITED    STATES.  309 

healthy  economic  development.  Special  taxes  drive  out  certain 
employments  from  some  states,  special  exemptions  artificially 
foster  them  in  others ;  and  in  many  quarters  ill-judged  or  ill- 
adjusted  systems  of  taxation  tend  to  hamper  industry  and 
exclude  capital.  So,  too,  in  the  matter  of  Corporations  diversity 
of  state  law  works  great  confusion  and  partial  disaster  to  the 
interests  of  commerce  and  industry,  not  only  because  some 
states  are  less  careful  in  their  creation  and  control  of  corpora- 
tions than  others,  and  so  work  harm  to  their  own  citizens,  but 
also  because  loosely  or  unwisely  incorporated  companies  created 
by  the  laws  of  one  state  may  do  business  and  escape  proper 
responsibility  in  another  state. 

In  the  Criminal  Law,  again,  variety  works  social  damage, 
tending  to  concentrate  crime  where  laws  are  lax,  and  to  under- 
mine by  diffused  percolation  the  very  principles  which  social 
experience  has  established  for  the  control  of  the  vicious  classes. 
So,  too,  in  laws  concerning  debt,  special  exemptions  or  special 
embarrassments  of  procedure  here,  there,  and  everywhere  impair 
that  delicate  instrument,  credit,  upon  whose  perfect  operation  the 
prosperity  of  a  commercial  nation  depends. 

Proposals  of  Reform.  —  It  is  in  view  of  such  a  state  of 
affairs,  such  a  multiformity  and  complexity  of  law  touching  mat- 
ters which  ought,  for  the  good  of  the  country,  to  be  uniformly 
and  simply  regulated  throughout  the  Union,  that  various  exten- 
sions of  the  sphere  of  the  federal  government  have  been  proposed 
by  sanguine  reformers,  who  would  have  all  interests  which  need 
for  their  advancement  uniform  rules  of  law  given  over  to  the  care 
of  Congress  by  constitutional  amendment. 

Evils  of  the  Case  Easily  Exaggerated.  —  The  extent  of 
the  legal  friction  and  confusion  complained  of  may,  however, 
easily  be  exaggerated.  It  is  in  most  cases  a  confusion  of  detail 
and  of  procedure  rather  than  of  principle  or  substance,  and  has 
more  exasperations  for  the  lawyer  than  for  the  layman.  Unques- 
tionably there  is  vastly  more  uniformity  than  diversity.  Nearly 
all  the  states  have  built  up  their  law  upon  the  ancient  and  com- 
mon foundation  of  the  Common  Law  of  England,  the  new  states 
borrowing  their  legislation  in  great  part  from  the  old.  Nothing 
could  afford  clearer  evidence  of  this  than  the  freedom  with  which, 


310  THE  GOVERNMENT   OF   THE   UNITED   STATES. 

in  the  courts  of  nearly  every  state  in  the  Union,  the  decisions 
of  the  courts  of  the  other  states,  and  even  the  decisions  of  the 
English  courts,  are  cited  as  suggestive  or  illustrative,  some- 
times also  as  authoritative,  precedent.  Everywhere,  for  instance, 
the  laws  of  property  Test  upon  substantially  the  same  bases  of 
legal  principle,  and  everywhere  those  laws  have  been  similarly 
freed  from  the  burdens  and  inequalities  of  the  older  system  from 
which  they  were  derived.  Everywhere  there  is  the  same  facility 
of  transfer,  the  same  virtual  abolition  of  all  feudal  character- 
istics of  tenure,  the  same  separation  between  the  property  in- 
terests of  man  and  wife,  the  same  general  rules  as  to  liens  and 
other  claims  on  property,  the  same  principles  of  tenancy,  of 
disposition  by  will,  and  of  intestate  inheritance.  Every- 
where, too,  contracts,  common  carriage,  sales,  negotiable  paper, 
and  partnership  rest  upon  similar  principles  of  practically  uni- 
versal acceptance.  We  feel  the  conflicts,  because  we  suffer  under 
their  vexations ;  while  we  fail  to  realize  and  appreciate  the  uni- 
formities, because  they  are  normal  and  have  come  to  seem  matters 
of  course.  It  must  be  acknowledged,  moreover,  that  even  within 
the  area  of  irritation  there  are  strong  corrective  forces  at  work,  a 
growing  moral  sentiment  and  a  fashion  of  imitation,  promising 
the  initiation  and  propagation  of  reform.  As  the  country  grows 
socially  and  politically,  its  tendency  is  to  compact,  to  get  a  com- 
mon thought  and  establish  common  practices.  As  it  compacts, 
likenesses  will  be  emphasized,  diversities  pared  and  worn  away. 

Louisiana  and  New  Mexico  stand  apart  with  a  peculiar  law  of  their  own, 
unlike  the  law  of  the  rest  of  the  states,  because  based  upon  the  civil  law  of 
France  and  Spain,  which  is  Roman  law  filtered  through  the  histories  of  the 
Romance  nations.  Inevitably,  however,  the  laws  of  these  exceptional  com- 
munities have  approximated  in  some  degree  to  the  legal  systems  of  the  rest 
of  the  Union  ;  and  they  will  draw  still  closer  to  them  in  the  future. 

Interstate  Law:  Commerce.  —  In  a  country  being  thus 
compacted,  thus  made  broader  than  its  states  in  its  feelings  and 
interests,  thus  turned  away  from  the  merely  local  enterprise  of 
its  early  industrial  history  to  the  national  commerce  and  produc- 
tion of  the  present  generation,  state  lines  must  coincide  with  the 


THE   GOVERNMENT   OF   THE   UNITED    STATES.  311 

lines  of  very  few  affairs  which  are  not  political :-  there  must  be 
many  calls  for  the  adjusting  weight  of  an  authority  larger  than 
that  of  any  single  state.  Most  such  interests,  happily,  are 
commercial  in  their  nature,  and  with  the  regulation  of  interstate 
commerce  Congress  has  always  been  charged.  It  was  to  give 
Congress  this  power,  indeed,  that  the  great  constitutional  con- 
vention was  called :  interstate  commerce  was  one  of  the  chief 
sources  of  the  alarming  friction  between  the  states  which  marked 
that  time  of  crisis.  It  is  by  the  operation  of  this  power  that  the 
great  railroad  systems  of  this  country,  and  the  endless  telegraph 
and  telephone  lines,  have  come  under  the  guardianship,  and,  so 
far  as  Congress  has  chosen,  under  the  regulation  of  the  federal 
government.  Federal  law  cannot  touch  agencies  of  commerce 
which  lie  wholly  within  a  single  state ;  but  there  are  nowadays 
very  few  such  agencies,  and  the  jurisdiction  of  Congress  over 
commerce,  where  it  does  exist,  is  exclusive  of  all  interference  by 
the  states.  Federal  law  controls  all  navigable  waters  which 
constitute  natural  highways  of  interstate  traffic  or  intercourse, 
whether  directly  or  only  through  their  connections  ;  it  extends  to 
such  waters,  not  only,  but  also  to  the  control  of  the  means  by 
which  commerce  may  cross  them  in  its  land  passage,  to  the 
construction,  that  is,  of  bridges  over  navigable  waters  for  the 
facilitation  of  land  traffic.  It  excludes  every  state  tax  or 
license  law,  every  state  regulation  whatever,  that  in  any  way 
affects  by  way  of  restriction  or  control  any  movement  of  com- 
merce or  intercourse  between  the  states. 

Posts  and  Telegraphs.  —  Directly  supplementary  to  the 
power  of  Congress  over  interstate  commerce  is  its  power  to 
establish  post-offices  and  post-roads.  This  has  been  interpreted 
to  bestow  upon  Congress  the  right  to  facilitate  telegraphic  inter- 
course between  the  states  by  taking  measures  to  break  down 
exclusive  privileges  granted  by  a  state ;  and  it  must  undoubtedly 
be  taken  as  rounding  out  to  a  perfect  wholeness  the  control  of 
the  general  government  over  the  means  of  communication 
between  state  and  state. 

Of  course,  too,  this  is  a  jurisdiction  which  must  necessarily  ad- 
vance with  lengthening  strides  as  the  movements  of  our  already 


312  THE   GOVERNMENT   OF   THE   UNITED    STATES. 

vast  commerce  become  yearly  even  .wider  still  and  more  rapid. 
It  has  been  made,  indeed,  to  carry  also  a  promise  even  of  federal 
ownership  of  the  telegraph  systems  of  the  country,  and  of  a  very 
much  more  extensive  regulation  of  railway  management  than 
has  yet  been  ventured  upon.1  The  most  significant  step  yet 
taken  was  the  creation,  in  1887,  of  an  Interstate  Commerce 
Commission  charged  with  the  prevention  of  unjust  discrimina- 
tions in  railroad  rates  either  for  freight  or  passage.  This  Com- 
mission has  already  become  one  of  the  most  important  judicial 
bodies  of  the  nation,  and  illustrates  a  very  important  experiment 
in  federal  control. 

Citizenship.  —  Citizenship  in  the  United  States  illus- 
trates the  double  character  of  the  government.  Whoever  pos- 
sesses citizenship  at  all  is  a  citizen  both  of  the  United  States 
and  of  the  state  in  which  he  lives.  He  cannot  be  a  citizen  of 
the  United  States  alone,  or  only  of  a  state ;  he  must  be  a  citizen 
of  both  or  of  neither :  the  two  parts  of  his  citizenship  cannot 
be  separated.  The  responsibilities  of  citizenship,  too,  are  both 
double  and  direct.  Under  our  federal  system  punishment  for  the 
violation  of  federal  law  falls  directly  upon  individuals,  as  does 
punishment  for  the  violation  of  state  law ;  the  obligation  of  obe- 
dience is  in  both  cases  direct :  every  citizen  must  obey  both  federal 
law  and  the  law  of  his  own  state.  His  citizenship  involves  direct 
relations  with  the  authorities  of  both  parts  of  the  government 
of  the  country,  and  connects  him  as  immediately  with  the  power 
of  the  marshals  of  the  United  States  as  with  the  power  of  the 
sheriff  of  his  own  county,  or  the  constable  of  his  own  town. 

The  population  of  the  United  States  is  probably  less  stationary 
in  its  residence  than  the  population  of  any  other  country  in  the 
world,  and  frequent  changes  of  residence  have  led  to  a  great 
facilitation  of  the  transfer  of  citizenship  from  one  state  to 
another.  A  very  brief  term  of  residence  in  a  new  home  in  an- 
other state  secures  the  privileges  of  citizenship  there:  but  in 
transferring  his  state  citizenship  a  citizen  does  not  affect  his 

1  The  control  of  both  the  railroads  and  the  telegraph  systems  has  been 
taken  over  by  the  federal  government  for  the  period  of  the  war. 


THE   GOVERNMENT   OF    THE    UNITED    STATES.  313 

citizenship  of  the  United  States  at  all.  The  term  of  residence 
required  for  the  acquirement  of  the  privilege  of  suffrage  varies 
from  three  months  to  two  years  and  a  half,  but  is  in  most  cases 
one  year. 

Elements  of  Confusion.  —  A  very  considerable  amount  of 
obscurity,  it  must  be  admitted,  surrounds  the  question  of  citizen- 
ship in  the  United  States.  The  laws  of  our  states  have  so  freely 
extended  to  aliens  the  right  to  hold  property,  and  even  the  right 
to  vote  after  a  mere  declaration  of  intention  to  become  naturalized 
citizens  (see  page  320),  —  have,  in  brief,  so  freely  endowed  aliens 
with  all  the  most  substantial  and  distinguishing  privileges  of  citi- 
zenship,—  that  it  has  become  extremely  difficult  to  draw  any 
clear  line,  any  distinction  not  merely  formal,  between  citizens 
and  aliens.  Of  course  if  a  person  who  is  not  formally  naturalized 
exchanges  residence  in  a  state  in  which  he  was  allowed  the  priv- 
ileges of  citizenship  for  residence  in  a  state  in  which  those  priv- 
ileges are  denied  him,  he  can  complain  of  no  injustice  or  inequal- 
ity. The  Constitution  of  the  United  States  commands  that  "  the 
citizens  of  each  state  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  states  " ;  but  only  federal 
law  admits  aliens  to  formal  citizenship,  and  only  formal  citizen- 
ship can  give  to  any  one,  wherever  he  may  go,  a  right  to  the 
privileges  and  immunities  of  citizenship.  The  suffrage  in  par- 
ticular is  a  privilege  which  each  state  may  grant  upon  terms  of 
its  own  choosing,  provided  only  that  those  terms  be  not  inconsis- 
tent with  a  republican  form  of  government,  and  with  the  Consti- 
tution of  the  United  States. 

Naturalization.  —  Naturalization  is  the  name  given  to 
the  acquirement  of  citizenship  by  an  alien.  The  power  to  pre- 
scribe uniform  rules  of  naturalization  rests  with  Congress  alone, 
by  grant  of  the  Constitution.  The  states  cannot  make  rules  of 
their  own  in  the  matter,  though  they  may,  singularly  and  incon- 
sistently enough,  admit  to  the  privileges  of  citizenship  on  what 
terms  they  please  (page  220).  The  national  naturalization  law 
requires  that  the  person  who  wishes  to  become  a  citizen  must 
apply  to  a  court  of  law  in  the  state  or  territory  in  which  he 


314  THE   GOVEBNMENT   OF  THE   UNITED   STATES. 

desires  to  exercise  the  rights  of  citizenship  for  formal  papers 
declaring  him  a  legal  citizen ;  that  before  receiving  such  papers 
he  must  take  oath  to  be  an  orderly  and  loyal  citizen  and  must 
renounce  any  title  of  nobility  he  may  have  held ;  and  that  in 
order  to  obtain  such  papers  he  must  have  lived  in  the  United 
States  at  least  five  years,  and  in  the  state  or  territory  in  which 
he  makes  application  at  least  one  year ;  and  at  least  two  years 
before  his  application  he  must  have  declared  in  court  under  oath 
his  intention  to  become  a  naturalized  citizen. 

It  is  not  necessary  for  a  person  who  became  a  resident  of  the 
United  States  three  years  before  coming  of  age  to  make  such  a  sworn 
declaration  of  his  intention  to  become  a  citizen.  If  a  man  who  has  made 
such  sworn  declaration  dies  before  taking  out  his  papers  of  naturalization, 
his  widow  and  minor  children  may  become  citizens  by  merely  taking  the 
necessary  oath  of  citizenship  at  the  proper  time.  The  children  of  persons 
who  become  naturalized,  if  they  live  in  the  United  States,  and  are  under 
twenty-one  years  of  age  when  their  parents  take  the  oath  of  citizenship, 
become  citizens  by  virtue  of  the  naturalization  of  their  parents. 

In  Germany,  the  terms  and  conditions  upon  which  foreigners  are  to  be 
admitted  to  citizenship  are  also  regulated  by  federal  law  ;  while  in  Switzer- 
land citizenship  in  its  fulness  can  be  conferred  only  by  cantonal  law, 
though  naturalization  is  regulated  by  federal  provision.  The  European 
states  have,  however,  very  few  of  the  problems  of  naturalization  which 
confront  and  confound  us  in  the  United  States.  The  whole  world  is  not 
coming  to  them  as  it  is  coming  to  us. 

Citizenship  under  a  Confederation.  —  The  possession  of  a 
national  naturalization  law  is  one  of  the  practical  political  features  which 
distinguish  our  general  government  from  the  government  of  a  mere 
confederation.  The  states  which  compose  it  are  the  only  '  citizens '  of  a 
confederation  :  for  the  individual  there  is  no  federal  citizenship ;  and  the 
transfer  by  an  individual  of  his  citizenship  from  one  state  to  another 
within  the  confederation  is  as  much  a  mere  matter  of  international  comity 
as  if  the  states  were  not  bound  together  by  any  common  law. 

Central  Governments  of  the  States.  —  The  governments 
of  the  states  depend  for  their  structure  and  powers  entirely  upon 
written  fundamental  law,  —  upon  documents  which  we  may  call 
popular  charters.  It  was,  as  I  have  said,  upon  the  models  and 
precedents  furnished  by  the  governments  of  the  thirteen  original 
states  that  the  federal  government  was  constructed,  and  this  was 
one  of  the  features  copied :  the  state  governments,  no  less  dis< 


THE   GOVERNMENT   OF   THE  UNITED   STATES.  315 

tinctly  than  the  federal  government,  rest  upon  fundamental  law 
based  upon  the  explicit  assent  of  the  people  or  their  representa- 
tives. 

A  very  great  uniformity  of  structure  is  observable  among 
the  central  governments  of  the  states  in  all  general  features.  One 
of  the  most  obvious  points  of  resemblance  between  them  is  the 
complete  separation  and  perfect  coordination  of  the  three  great 
departments  of  governmental  action,  —  the  legislative,  the  execu- 
tive, and  the  judicial ;  and  these  are  set  apart  and  organized  under 
the  state  constitutions  with  a  very  much  greater  particularity  than 
characterizes  the  provisions  of  the  federal  constitution. 

The  State  Legislatures:  their  Powers. — The  state  con- 
stitutions supplement  the  Constitution  of  the  Union,  providing 
for  the  exercise  of  all  powers  not  bestowed  by  the  federal  charter ; 
and  the  legislatures  of  the  states  may  be  said,  in  general  terms, 
to  possess  all  law-making  powers  not  given  to  Congress.  But  this 
is  by  no  means  a  complete  statement  of  the  case.  State  constitu- 
tions contain  strict  limitations  of  power  no  less  than  does  the 
Constitution  of  the  United  States.  Some  powers  there  are  which 
are  altogether  withheld:  which  cannot  under  our  system  be 
exercised  by  any  existing  authority :  which  have  been  granted 
neither  to  Congress  nor  to  the  legislatures  of  the  states.  Such, 
for  example,  are  the  power  to  grant  to  any  person  or  class  of  per- 
sons exclusive  political  privileges  or  immunities,  the  power  to 
bestow  hereditary  privileges  or  honors,  and  the  power  to  abridge 
in  any  way  the  equal  rights  to  life,  liberty,  and  property.  These 
may  safely  be  said,  however,  to  be  powers  which  no  state  legis- 
lature would  in  any  case  dream  of  exercising,  inasmuch  as  they 
would  have  to  be  exercised,  if  exercised  at  all,  in  the  face  of  a 
public  opinion  which  would  certainly  refuse  reelection  to  any 
legislator  who  should  violate  the  principles  of  republican  govern- 
ment so  strenuously  worked  out  in  our  history,  from  Magna  Charta 
down,  and  now  so  warmly  cherished  by  all  classes  of  our  people 
that  no  denial  of  them  could  stand  upon  our  statute  books  a  single 
twelve-month.  These  are  at  most  limitations  put  upon  reaction. 

Limitations  of  Length  of  Session,  etc.  —  There  are  other 
limitations,  however,  of  a  very  different  character  contained  in 
our  state  constitutions :  limitations  meant  especially  to  control 


316  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

the  action  of  legislatures  within  the  sphere  of  their  proper  and 
undoubted  powers,  and  unquestionably  based  upon  a  general  dis- 
trust of  the  wisdom,  if  not  of  the  honesty,  of  legislators.  Thus 
our  constitutions  very  commonly  forbid  all  private  or  special 
legislation,  confining  legislatures  to  the  passage  of  general  laws 
applying  uniform  rules  to  all  persons  and  all  cases  alike.  They 
limit,  moreover,  in  very  many  cases,  the  length  and  frequency  of 
legislative  sessions,1  providing  that  the  legislature  shall  convene, 
for  instance,  only  once  in  every  period  of  two  years,  and  shall 
continue  its  biennial  session  for  not  more  than  a  certain  number 
of  days,  except  under  special  or  exceptional  conditions,  when 
extra  sessions  may  be  called  by  the  governor  or  regular  sessions 
extended  by  a  special  two-thirds  or  three-fifths  vote.  Many  con- 
stitutions contain,  also,  minute  provisions  concerning  the  conduct 
of  legislation,  forbidding  the  introduction  of  bills  later  than  such 
and  such  a  day  of  a  limited  session,  prescribing  the  general  form 
of  bills,  limiting  their  subject-matter  to  a  single  object  each,  and 
even  commanding  the  manner  of  their  consideration. 

Other  Limitations.  —  More  than  this,  as  we  have  seen, 
there  are  certain  classes  of  legislative  provisions  which  have  been 
removed  beyond  the  cognizance  of  legislatures  by  being  put  into 
the  constitutions  themselves  :  such  as  exemptions  of  certain  classes 
of  property  from  seizure  for  private  debt  (generally  called  "  home- 
stead exemptions  "),  '  prohibition '  provisions,  etc.  The  embodi- 
ment of  such  measures  in  constitutions  is  intended  to  put 
them  beyond  legislative  interference,  —  is  a  limitation  of  the 
same  indirect  sort  as  a  Bill  of  Eights.  It  is  usual,  also,  for  our 
state  constitutions  to  limit  the  power  of  legislatures  to  create 
corporations,  by  provisions  which  direct  the  passage  of  general 
laws  of  incorporation  to  be  applied  in  a  formal  administrative 
manner  by  the  courts,  to  which  applications  for  incorporation 
are  to  be  made. 

State  Legislatures  not  Sovereign  Bodies. — It  will  thus 
be  seen  that  our  state  legislatures  are  not  in  any  sense  '  sovereign ? 

1  The  period  to  which  the  duration  of  legislative  sessions  is  restricted 
varies,  when  imposed,  from  forty  days  (Wyoming)  to  ninety  days  (Colorado 
and  Minnesota) ,  the  most  common  period  being  sixty  days. 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  317 

bodies.  There  is  a  certain  serviceable  clearness  of  view  to  be 
had  by  regarding  the  state  governments  as,  in  their  legal  as- 
pect, like  corporations.  Their  legislatures  are  law-making  bodies 
acting  within  the  gifts  of  charters,  and  are  by  these  charters 
in  most  cases  very  strictly  circumscribed  in  their  action.  It 
is  this  fact  which  gives  so  unique  a  place  of  power  under  our 
system  to  the  courts,  the  authoritative  interpreters  of  the  funda- 
mental law  to  which  all  legislation  and  all  executive  action  must 
conform. 

Legislative  Organization.  —  In  every  state  the  legislature 
consists  of  two  houses,  a  senate  and  house  of  representatives,  and 
in  most  of  the  states  the  term  of  senators  is  four  years,  that  of 
representatives  two  years,  one-half  of  the  senate  being  renewed 
every  two  years  at  the  general  elections.  There  is  no  such  differ- 
ence in  character,  however,  between  the  two  houses  of  the  state 
legislatures  as  exists  between  the  Senate  and  the  House  of  Repre- 
sentatives of  the  United  States.  Connecticut,  as  we  have  seen 
(page  289),  furnished  the  suggestion  upon  which  the  framers  of 
the  federal  Constitution  acted  in  deciding  upon  the  basis  and 
character  of  representation  in  the  two  federal  houses  ;  for  in  the 
Connecticut  legislature  of  that  time  one  house  represented  the 
towns,  as  the  confederate  units  of  the  state,  while-  the  other  rep- 
resented the  people  directly.  Even  Connecticut  has  now  aban- 
doned this  arrangement,  however,  and  in  almost  all  the  states 
representation  in  both  houses  is  based  directly  upon  population, 
the  only  difference  between  the  senate  and  house  being  that  -the 
senate  consists  of  fewer  members  representing  larger  districts. 
Often,  for  instance,  each  county  of  a  state  is  entitled  to  send 
several  representatives  to  the  lower  house  of  the  legislature, 
while  several  counties  are  combined  to  form  a  single  senatorial 
district. 

Reasons  for  Two  Houses  in  State  Legislatures.  —  There 
is,  consequently,  no  such  historical  reason  for  having  two  houses 
in  the  states  as  exists  in  the  case  of  the  federal  government.  The 
object  of  the  federal  arrangement  is  the  representation  of  the 
two  elements  upon  which  the  national  government  rests,  namely, 
the  popular  will  and  a  federal  union  of  states.  The  state  legis- 
latures have  two  houses  simply  for  purposes  of  deliberateness  in 


318    THE  GOVERNMENT  OF  THE  UNITED  STATES. 

legislation,  in  order,  that  is,  that  legislation  may  be  filtered 
through  the  debates  of  two  coordinate  bodies,  representing 
slightly  differing  constituencies,  though  coming  both  directly 
from  the  people,  and  may  thus  escape  the  taint  of  precipitation 
too  apt  to  attach  to  the  conclusions  of  a  single  all-powerful 
popular  chamber.  The  double  organization  represents  no  prin- 
ciple, but  only  an  effort  at  prudence. 

The  reason  for  our  having  double  legislatures  cannot,  however, 
be  so  simply  explained.  It  is  compounded  of  both  deliberate  and  histori- 
cal elements.  Its  historical  grounds  are  sufficiently  clear :  the  senates 
of  our  states  are  lineal  descendants  of  the  councils  associated  with  the 
colonial  governors,  though  they  now  represent  a  very  different  principle. 
The  colonial  councils  emanated  from  the  executive,  and  may  be  said  to 
have  been  parts  of  the  executive,  while  our  senates  emanate  from  the 
people.  Then,  too,  there  was  the  element  of  deliberate  imitation  of 
English  institutions.  One  hundred  years  ago  England  possessed  the 
only  great  free  government  in  the  world ;  she  was,  moreover,  our  mother 
land,  and  the  statesmen  who  formed  our  constitutions  at  the  revolution 
naturally  adopted  that  English  fashion  of  legislative  organization  which 
has  since  become  the  prevailing  fashion  among  all  liberalized  govern- 
ments. Possibly,  too,  they  were  influenced  by  more  ancient  example. 
The  two  greatest  nations  of  antiquity  had  had  double  legislatures,  and, 
because  such  legislatures  existed  in  ancient  as  well  as  in  modern  times, 
it  was  believed  that  they  were  the  only  natural  kind. 

Historical  Precedents. — Greeks,  Romans,  and  English  alike 
had  at  first,  it  is  true,  only  a  single  law-making  body,  a  senate  represent- 
ing the  elders  or  nobles  of  the  community,  associated  with  the  king,  and, 
because  of  the  power  or  rank  of  its  members,  a  guiding  authority  in  the 
state.  In  all  three  nations  special  historical  processes  produced  at  length 
legislatures  representing  the  people  also  ;  popular  assemblies  were,  on  one 
plan  or  another,  coordinated  with  the  aristocratic  assembly,  and  pres- 
ently the  plan  of  an  aristocratic  chamber  and  a  popular  chamber  in  close 
association  appeared  in  full  development.  We  copied  the  English  cham- 
bers when  they  were  in  this  stage  of  real  coordination  ;  before  her  legis- 
lature had  sustained  that  great  change,  which  Greece  and  Rome  also  had 
witnessed,  whereby  all  real  power  virtually  came  to  rest  again  with  a 
single  body,  the  popular  assembly. 

Terms  of  Senators  and  Representatives.  —  Among  the  older 
states  of  the  union  there  is  a  more  noticeable  variety  of  law  as  to  the 
terms  of  senators  and  representatives  than  is  to  be  found  in  most  of 
the  constitutions  of  the  newer  states.  In  Massachusetts,  for  instance, 
the  term  of  both  senators  and  representatives  is  a  single  year  only. 


THE   GOVERNMENT   OF    THE    UNITED   STATES.  819 

In  New  Jersey  senators  are  elected  for  three  years,  one-third  of  the  senate 
being  renewed  every  year  at  the  election  for  representatives,  whose  term 
in  New  Jersey  is  but  one  year.  A  few  of  the  states,  however,  both  new 
and  old,  limit  the  term  of  senators  to  two  years,  the  usual  term  of  repre- 
sentatives ;  while  in  Louisiana  representatives  are  given  the  term  usually 
assigned  to  senators,  namely,  four  years. 

Names  of  the  Houses.  —  There  is  some  variety  among  the 
states  as  regards  the  name  by  which  the  lower  house  of  the  legislature  is 
known.  In  New  York  the  popular  house  is  called  "the  Assembly"  ;  in 
Virginia,  the  "House  of  Delegates";  in  New  Jersey,  the  "General 
Assembly," — a  name  usually  given  in  most  of  the  states  to  the  two 
houses  taken  together. 

The  Qualifications  required  of  senators  and  representa- 
tives vary  widely  in  the  different  states,  but  not  in  any  essen- 
tial point  of  principle.  It  is  universally  required,  for  example, 
that  members  of  the  legislature  shall  be  citizens;  it  is  very 
generally  required  that  they  shall  be  residents  of  the  states, 
sometimes  that  they  shall  be  residents  of  the  districts  for 
which  they  are  elected;  and  it  is  in  almost  all  cases  required 
that  a  member  of  the  legislature  shall  have  reached  a  certain 
age.  Variety  appears  in  these  provisions  only  in  respect  of 
details,  as  to  the  length  of  time  citizenship  or  residence  shall 
have  been  acquired  before  election,  the  particular  age  necessary, 
etc.  The  age  required  varies  in  the  case  of  senators  from 
twenty-one  to  thirty  years,  in  the  case  of  representatives  from 
twenty-one  to  twenty-five. 

Legislative  Procedure. — The  same  general  rules  of 
organization  and  procedure  are  observed  in  the  constitution 
and  business  both  of  Congress  and  of  the  state  legislatures. 
The  more  numerous  branch  is  in  all  cases  presided  over  by 
an  officer  of  its  own  election  who  is  called  the  <  Speaker ' ;  and 
the  senate  sits  under  the  presidency,  generally,  of  a  Lieutenant- 
Governor,  who  occupies  much  the  same  place  in  the  govern- 
ment of  the  state  that  the  Vice-President  of  the  United  States 
occupies  in  the  national  government.  He  is  contingent  substi- 
tute for  the  governor.  In  twenty-seven  of  the  states  it  is  re- 
quired that  the  votes  of  a  majority,  not  of  a  quorum  merely,  but 
of  the  full  number  of  members  elected  to  each  house,  shall  be 
necessary  for  the  passage  of  a  bill. 


320  THE   GOVERNMENT   OF  THE   UNITED   STATES. 

Standing  Committees.  —  The  houses  of  the  state  legis« 
latures,  too,  being  separated  from  the  executive  in  such  a  way 
as  to  be  entirely  deprived  of  its  guidance,  depend  upon  stand- 
ing committees  for  the  preliminary  examination,  digestion,  and 
preparation  of  their  business,  and  allow  to  these  committees 
an  almost  unquestioned  command  of  the  time  and  the  conclu- 
sions of  the  legislature.  The  state  legislatures  of  the  early 
time  served  as  models  for  Congress.  They  and  the  legislatures 
of  the  later  states,  made  like  them,  have  retained  substantially 
their  first  plan  of  organization,  following  the  rules  of  parlia- 
mentary practice  universally  observed  among  English-speaking 
peoples;  and  they  and  Congress  alike  have  had  in  the  main 
the  same  development.  As  they  have  grown  larger  they  have 
grown  more  dependent  upon  their  advisory  parts,  their  com- 
mittees. 

In  several  states  the  constitutions  themselves  command  the  refer- 
ence of  all  bills  to  committees  and  forbid  the  passage  of  any  measure 
which  has  not  been  referred  and  reported  upon. 

The  Suffrage.  —  The  suffrage  is  in  all  the  states  given 
by  constitutional  provision  to  male  citizens  twenty-one  years 
of  age ;  but  it  does  not  in  all  the  states  stop  there.  Several  of 
the  states  extend  the  privilege  of  voting  also  to  every  male  resi- 
dent of  foreign  birth  who  is  twenty-one  years  of  age  and  has 
declared  his  intention  to  become  a  naturalized  citizen;  and 
several  of  the  states  grant  it  to  every  male  citizen  or  'inhabi- 
tant' of  voting  age.  The  laws  of  almost  all  the  states  require 
residence  in  the  state  for  a  certain  length  of  time  previous  to 
the  election  in  which  the  privilege  is  sought  to  be  exercised 
(the  period  varies  all  the  way  from  three  months  to  two  years 
and  a  half),  as  a  condition  precedent  to  voting;  most  require 
a  certain  length  of  residence  in  the  county  also  where  the 
privilege  is  to  be  exercised;  some  a  certain  length  of  residence 
in  the  voting  precinct.  Many  states  require  all  voters  to  have 
paid  certain  taxes ;  in  Delaware  they  are  required  to  have  paid 
a  fixed  registration  fee ;  but  no  state  except  Rhode  Island  and 
South  Carolina  has  a  property  qualification  properly  so-called, 
[n  South  Carolina  it  is  required  that  each  voter  shall  be  able 


THE  GOVERNMENT   OF   THE   UNITED   STATES.  321 

to  read  and  write,  or,  if  illiterate,  shall  own  property  valued  at 

three  hundred  dollars. 

In  several  of  the  states  the  suffrage  is  confined  to  those  who  can  read  the 
constitution  or  the  laws  of  the  state.  It  is  common,  of  course,  throughout 
the  country  to  exclude  criminals,  insane  persons,  and  idiots  ;  and  in  sev- 
eral states  the  privilege  is  withheld  from  those  who  bet  on  elections.  In 
Florida  betting  on  an  election  not  only  excludes  from  the  election  in  con- 
nection with  which  the  offence  is  committed,  but  is  punished,  upon  con- 
viction, by  entire  and  permanent  disfranchisement. 

Women  are  accorded  the  privilege  of  voting  in  school  elections 
in  a  number  of  states,  and  in  a  still  larger  number  they  are  made 
eligible  to  be  elected  to  school  boards.  Several  states  have  extended 
the  franchise  to  them  in  municipal  elections  ;  and,  although  the  con- 
stitutions of  most  of  the  states  declare  the  suffrage  to  be  restricted 
to  males,  eleven  have  conferred  it  upon  women  in  all  elections.1 

The  ballot,  or  voting  paper,  is  throughout  all  the  states  the  in- 
strument of  voting,  and  they  have  adopted  the  so-called  Australian 
ballot  system,  by  which  voters  are  secured  a  complete  privacy 
in  the  preparation  of  the  voting  papers  and  in  the  casting  of  their 
votes  when  prepared. 

The  State  Courts.  —  A  very  great  variety  exists  among 
the  laws  of  the  several  states  regarding  the  constitution, 
functions,  and  relative  subordination  of  the  courts.  A  general 
sketch  of  the  state  courts  must,  therefore,  be  made  in  very 
broad  outline.  Perhaps  in  this  department  of  state  law,  as  in 
others,  there  may  be  said  to  be,  despite  a  bewildering  variety 
of  detail,  sufficient  unity  of  general  feature  to  warrant  a  gener- 
alized description,  and  to  render  unnecessary  the  unsatisfactory 
expedient  of  choosing  the  institutions  of  a  single  state  as  in  some 
broad  sense  typical,  and  describing  them  alone. 

The  courts  of  our  states  are  in  no  sense  organs  of  federal  justice, 
as  the  courts  of  the  German  states  are.  They  have  an  entirely 
independent  standing  and  organization  and  an  entirely  indepen- 
dent jurisdiction.  Their  constitution  and  procedure  are  in  no 
way  affected  by  federal  law,  —  except  of  course  by  way  of  lim- 
itation ;  —  their  sphere  is  a  sphere  apart.  The  series  of  courts 

1  These  states  are  Arizona,  California,  Colorado,  Idaho,  Kansas,  Montana, 
Nevada,  Oregon,  Utah,  Washington  and  Wyoming.  Illinois  has  conferred 
upon  women  the  suffrage  in  presidential  elections  and  -some  local  elections. 


322  THE   GOVERNMENT   OF   THE   UNITED    STATES. 

in  each  state,  therefore,  is  complete.  Every  state  has  its  supreme 
court,  as  well  as  its  inferior  tribunals,  and  appeals  lie  from  the 
state  courts  to  the  courts  of  the  United  States  only  in  cases  in- 
volving federal  law  or  in  cases  where  the  character  of  the  parties 
to  the  suit  does  not  give  any  state  court  complete  jurisdiction. 
One  of  the  most  characteristic  features  of  our  state 
courts  is  what  I  may  call  their  local  attachment.  In  most  cases 
the  judges  are  not  appointed  by  any  central  authority  but  are 
elected  by  the  voters  of  the  district  or  circuit  in  which  they 
hold  court;  they,  like  members  of  legislatures,  may  be  said  to 
have  '  constituents.'  Their  responsibility  is  thus  chiefly  a 
responsibility  to  the  electors,  a  popular  rather  than  an  official 
responsibility.  The  courts  are  held  together  in  a  common 
system  and  to  a  common  duty  only  by  law,  therefore,  and  not 
by  discipline  or  official  subordination  to  superior  judicial  authori- 
ties. The  courts  may  be  said  to  be  local  rather  than  central 
organs ;  they  are  integrated  only  in  opinion,  —  only  by  the 
course  of  appeal,  the  appellate  authority  of  the  higher  over  the 
lower  courts  in  points  of  law. 

This  localization  of  the  organs  of  government,  in  their  origin  as 
well  as  in  their  functions,  is  a  general  characteristic  of  American 
political  organization,  —  a  characteristic  which  appears  most  con- 
spicuously in  the  arrangements  of  local  government,  which  is  not 
so  much  organized  as  left  to  organize  itself  under  general  statutes, 
for  whose  enforcement  no  central  administrative  machinery  is 
provided. 

Common  Law  Courts.  —  There  are,  usually,  four  grades 
of  jurisdiction  in  the  judicial  systems  of  the  states,  with  four 
grades  of  courts  corresponding.  There  are  generally  (1)  Justices 
of  the  Peace,  who  have  jurisdiction  over  all  petty  police  offences 
and  over  civil  suits  for  trifling  sums ;  who  conduct  preliminary 
hearings  in  cases  of  grave  criminal  offence,  committing  the 
accused,  when  there  is  prima  facie  proof  of  guilt,  for  trial  by  a 
higher  court ;  and  who  are,  in  general  terms,  conservators  of  the 
peace.  They  act  separately  and  have  quite  lost  the  high 
judicial  estate  which  still  belongs  to  the  English  Justices,  from 
whom  they  take  their  name.  Their  decisions  are  in  almost  all 
cases  subject  to  appeals  to  higher  courts. 


THE   GOVERNMENT   OF   THE   UNITED    STATES.  323 

Mayor's  courts  in  the  towns  are  generally  the  same  in  rank  and 
jurisdiction,  so  far  as  criminal  cases  are  concerned,  as  the  courts  of  Jus- 
tices of  the  Peace. 

(2)  County  or  Municipal   Courts,   which  hear    appeals 
from  Justices  of  the  Peace  and  from  Mayor's  courts,  and  whose 
own  original  jurisdiction  is  one  step   higher   than   that   of   the 
Justices,  including  civil  cases  involving  considerable  sums,  and 
criminal  cases  generally  not  of  the  gravest  character. 

Often,  however,  courts  of  this  grade,  especially  the  municipal 
courts  of  the  larger  towns,  are  given  a  much  higher  jurisdiction  and  are 
coordinated  in  some  respects  with  courts  of  the  next  higher  grade,  the 
Superior  Courts.  In  New  York,  New  Jersey,  and  Kentucky  the  county 
courts  retain  the  English  name  of  Quarter  Sessions. 

(3)  Superior  Courts,  which  hear  appeals  from  the  county 
and  municipal  courts,  and  generally  from  all  inferior  courts,  and 
which  are  themselves  courts  of  high  original  jurisdiction  of  the 
most  general  character  in  both  civil  and  criminal  cases.     They 
may  be  said  to  be  the  general  courts  which  give  to  the  courts  of 
lower  grade   their  name   of   '  inferior/     County  and  municipal 
courts,  as  their  names  imply,  sit  only  for  certain  small  districts ; 
but  the   districts  over  which  superior  courts   have  jurisdiction 
usually  cover  a  wide  area,  necessitating  the  sitting  of  each  such 
court  in  several  places  in  succession.     In  other  words,  superior 
courts  are  generally  circuit  courts,  and  in  many  states  bear  that 
name. 

1  Circuit  courts '  is,  indeed,  the  most  generally  used  name  for 
courts  of  this  grade,  that  is,  for  the  principal  courts  of  the  state  ;  though 
in  almost  as  many  states  they  are  called  '  district  courts.'  In  most  of  the 
states  these  courts  have  special  judges  of  their  own ;  but  in  Maine  and 
New  Hampshire  they  are  held  by  the  judges  of  the  supreme  court  on 
circuit. 

In  some  states  civil  is  separated  from  criminal  jurisdiction  in  this 
grade,  and  distinct  courts  are  created  for  each.  Thus  in  Texas  there  are 
District  courts  for  civil  causes,  District  Criminal  courts  for  criminal  cases. 
In  Pennsylvania  courts  of  Quarter  Sessions  are  the  courts  of  general  crimi- 
nal jurisdiction,  as  in  England,  civil  causes  going  to  the  courts  of  Common 
Pleas.  Delaware  has  criminal  courts  called  courts  of  Gaol  Delivery. 

(4)  Supreme  Courts,  which  in  most  of  the  states  have  no 
original  jurisdiction  at  all,  but  only  appellate  jurisdiction,  hearing 


324     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

appeals  in  all  classes  of  cases  (except  such  as  involve  only  trifling 
offences  or  small  sums  of  money)  from  the  superior  courts  and 
from  various  inferior  courts. 

(5)  In  several  states  there  are  supremest  courts  above  the  'su- 
preme.' Thus  in  New  York  there  is  a  Supreme  Court,  which  has  its  Appel- 
late Division ;  the  Appellate  Division  has  four  several  parts  or  sections 
which  sit  and  hear  appeals  in  the  four  judicial  districts  into  which  the  state 
is  divided ;  and  over  all  there  is  a  Court  of  Appeals,  a  court  of  general 
revision.  In  New  Jersey  there  is  a  supreme  court  above  the  circuit,  which 
is  itself  of  high  appellate  jurisdiction,  and  a  Court  of  Errors  and  Appeals 
above  the  supreme ;  in  Louisiana  the  order  is  reversed  and  there  is  a 
supreme  court  above  a  court  of  appeals ;  in  Illinois  a  supreme  court  above 
certain  district  "  appellate  courts  "  ;  and  in  Kentucky  a  somewhat  similar 
arrangement  prevailed  until  the  Constitutional  revision  of  1891.  In  Texas 
there  are  two  coordinate  supreme  courts  :  one,  called  the  supreme,  for  the 
hearing  of  civil  cases  only,  the  other,  called  the  court  of  appeals,  for  the 
hearing  of  criminal  cases  and  of  civil  cases  brought  up  from  the  county 
courts. 

The  name  '  court  of  appeals '  is  found  also  in  California,  Maryland,  Vir- 
ginia, and  West  Virginia. 

In  five  of  the  original  states  (New  Hampshire,  Massachusetts, 
Rhode  Island,  New  York,  New  Jersey),  and  in  Maine,  the  supreme 
courts  have,  anomalously  enough,  original  as  well  as  appellate  jurisdic- 
tion in  all  cases ;  but  in  the  newer  states  such  an  arrangement  is  never 
found.  In  the  case  of  New  York,  however,  it  is  hardly  accurate  to  say 
that  the  Supreme  Court  has  original  jurisdiction,  but  rather  that  its  judges 
have,  acting  separately,  and  subject  to  the  oversight  of  the  several  sections 
of  the  '  Appellate  Division.' 

In  several  of  the  larger  cities  of  the  country  there  are  complete 
sets  of  courts,  reproducing  the  state  judiciary  in  small.  Thus  in  Baltimore, 
for  example,  there  are  city  courts  from  the  lowest  grade  up  to  a  *  Supreme 
Bench  of  Baltimore  City.' 

Courts  of  Equity.  — '  Equity  *  is  denned,  under  the  legal 
systems  of  England  and  the  United  States,  as  "  that  portion  of 
remedial  justice  which  is  exclusively  administered  by  a  court  of 
equity,  as  contradistinguished  from  that  portion  of  remedial  jus- 
tice which  is  exclusively  administered  by  a  court  of  common  law  " 
(Story).  In  other  words,  it  is  that  portion  of  remedial  justice 
which  was  administered  in  England  by  the  Chancellors,  who  were 
'the  keepers  of  the  king's  conscience/  and  from  whose  court,  as  if 
from  the  king's  sense  of  justice,  there  issued  writs  from  time  to 
time  for  the  remedy  of  wrongs  for  which  the  common  law  made 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  325 

no  adequate  provision  (page  185).  The  early  Chancellors  were 
ecclesiastics  imbued  with  Roman  law  as  it  had  come  down  through 
the  medium  of  the  canon  law,  and  both  in  their  hands  and  in 
those  of  their  lay  successors  of  later  times,  who  were  the  heirs  of 
their  principles  and  prerogatives,  equity  law  and  procedure  became 
a  very  different  thing  from  the  law  and  procedure  of  the  common 
law  courts. 

Fusion  of  Law  and  Equity.  —  As  time  has  gone  on  equity 
and  law  have  been  largely  fused,  even  in  England,  just  as  the  jus 
gentium  and  the  jus  civile  became  merged  in  the  development 
of  the  Roman  law ;  and  in  most  of  the  states  of  the  Union  the 
same  courts  exercise  both  equitable  and  common  law  jurisdic- 
tion. In  several  states  the  whole  procedure  even,  in  both  juris- 
dictions has  been  made  practically  identical,  and  law  is  hardly 
distinguishable  from  equity.  Generally,  however,  the  dis- 
tinctive procedure  at  least  has  been  preserved,  and  only  courts 
of  the  superior  and  supreme  grades  have  been  given  equitable 
jurisdiction,  —  jurisdiction,  that  is,  over  cases  in  which  the 
remedy  is  equitable.  In  Alabama,  Delaware,  Michigan,  Missis- 
sippi, New  Jersey,  Tennessee,  and  Vermont  there  are  still 
special  chancery  courts. 

Equity  processes  of  trial  differ  from  common  law  processes, 
outwardly,  chiefly  in  the  fact  that  the  testimony  is  written  instead 
of  oral,  and  that  decisions  of  fact  as  well  as  of  law  rest  with  the 
judge  instead  of  with  a  jury.  For  its  special  subject-matter  equity 
jurisdiction  generally  embraces  such  matters  as  trusts,  mistakes, 
frauds,  etc.,  —  matters  hardly  tangible  by  ordinary  remedies. 

Probate  Courts.  —  In  most  of  the  states  there  are  special 
probate  courts,  —  special  courts,  that  is,  charged  with  jurisdiction 
over  the  proof  of  wills,  the  administration  of  estates,  the  appoint- 
ment of  guardians,  administrators,  etc.,  the  care  of  the  estates  of 
wards,  and,  in  general,  of  the  proper  disposition  of  the  property  of 
persons  deceased.  In  some  of  the  states,  however,  these  functions 
are  left  to  the  ordinary  courts  of  law. 

In  England  this  probate  jurisdiction  was,  from  the  first  until  a  very 
recent  date,  a  prerogative  of  the  ecclesiastical  courts,  and  in  two  of 
our  states  the  probate  courts  retain  the  names  of  the  officers  who  exer- 
cised this  function  in  the  place  of  the  bishop  ;  in  Georgia  the  court  is 


326  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

called  the  court  of  the  *  Ordinary,'  in  New  York  the  '  Surrogate's '  court. 
In  New  Jersey,  with  a  reminiscence  of  the  same  origin,  it  is  called  the 
4  Prerogative '  court.  In  several  states,  on  the  other  hand,  it  is  known, 
by  virtue  of  one  side  of  its  function,  as  the  «  Orphan's '  court. 

Judges.  —  The  judges  of  most  of  the  state  courts  are 
elected,  generally  by  the  people,  in  a  few  cases  by  the  legislature; 
but  in  several  states  they  are  nominated  by  the  governor  and  ap- 
pointed by  and  with  the  advice  and  consent  of  the  Senate.  In 
New  Hampshire  they  are  appointed  by  the  governor  by  and  with 
the  advice  and  consent  of  the  Council. 

Supreme  court  judges  are  usually  elected  by  the  people  of  the 
state  at  large  ;  circuit,  district,  county,  municipal,  and  other  judges  by  the 
electors  of  the  areas  in  which  they  serve. 

The  terms  of  judges  range  all  the  way  from  two  years  to  a  tenure 
during  good  behavior.  The  constitutions  of  more  than  three-fourths  of 
the  states  permit  the  removal  of  judges  by  the  legislature,  or  by  the  gov- 
ernor at  the  request  of  the  legislature.  In  Florida,  Massachusetts,  and 
Rhode  Island  all  judges  of  the  higher  courts  hold  during  good  behavior  ; 
in  New  Hampshire  until  seventy  years  of  age.  The  length  of  the  term 
varies  with  the  grade  of  the  court,  the  tendency  being  to  give  longer  terms 
to  the  judges  of  the  higher  courts. 

The  qualifications  required  of  judges  by  state  law  are  not 
stringent.  Only  fourteen  of  the  states  require  by  law  any 
identification  of  their  judges  with  the  legal  profession;  and 
only  ten  require  '  learning  in  the  law ' ;  though  custom  and  public 
opinion  invariably  confine  the  choice  of  judges  to  professional 
lawyers.  Generally  a  certain  age  is  required  of  judges  (varying, 
where  there  is  such  a  requirement,  from  twenty-five  to  thirty- 
eight  years),  besides,  in  most  cases  citizenship  and  residence  in 
the  state  or  circuit.  As  a  rule  single  judges  hold  all  the  courts 
except  the  highest.  Supreme  courts  have  a  more  or  less  nu- 
merous 'bench.' 

The  ministerial  officers  of  the  state  courts,  the  sheriffs,  are 
generally  not  appointed  by  the  judges  or  responsible  to  them,  but 
elected  by  the  people  and  answerable  to  '  constituents/  just  as  the 
judges  themselves  are.  Even  the  clerks  of  the  courts  are  often 
elected. 

The  position  of  sheriff  thus  differs  very  materially  from  the 
position  of  a  United  States  marshal  (sec.  1317),  the  sheriff's  counterpart 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  327 

in  the  federal  judicial  system.  The  marshal  is  appointed  by  the  Presi- 
dent of  the  United  States,  and  is  responsible  to  a  central  authority,  is 
part  of  a  centralized  organization  of  justice.  The  sheriff,  on  the  con- 
trary, is  the  organ  of  an  extremely  decentralized,  an  almost  disintegrated, 
organization  of  justice.  The  bailiffs,  the  sheriff's  deputies,  are  usually 
the  appointees  of  the  sheriff. 

The  State  Executives.  —  The  Executives  of  the  states  are 
the  least  distinct  parts  of  state  organization,  the  least  susceptible 
of  being  adequately  pictured  in  outline,  or  indeed  in  any  broad 
and  general  way.  Under  our  system  of  state  law  the  executive 
officers  of  a  state  government  are  neither  the  servants  of  the  legis- 
lature, as  in  Switzerland,  nor  the  responsible  guides  of  the  legis- 
lature, as  in  England,  nor  the  real  controlling  authority  in  the 
execution  of  the  laws,  as  under  our  own  federal  system.  The 
Executive  of  a  state  has  an  important  representative  place,  as  a 
type  of  the  state's  legal  unity ;  it  has  a  weighty  function  of  super- 
intendence, is  the  fountain  of  information,  the  centre  and  source 
of  advice,  the  highest  organ  of  administration  to  the  general  eye ; 
but  it  cannot  be  said  to  have  any  place  or  function  of  guiding 
power.  Executive  power  is  diffused  by  our  law  throughout  the 
local  organs  of  government ;  only  a  certain  formal  superintendence 
remains  with  the  authorities  at  the  state  capitals. 

Of  course  this  does  not  apply  to  the  governor's  veto  power, — 
that  contains  real  energy,  —  but  only  to  executive  functions  proper ;  these 
are  localized,  not  centralized,  after  the  extremest  pattern. 

Not  all  of  the  states  have  the  same  central  executive 
officers.  All  have  governors ;  a  majority  of  them  have  lieutenant- 
governors  ;  all  have  secretaries  of  state ;  all  have  treasurers ; 
almost  all  have  attorneys-general ;  and  a  majority,  superintend- 
ents of  education.  Many  have  also  auditors :  eleven  have  comp- 
trollers, and  fifteen  boards  of  education ;  four  (Massachusetts, 
New  Hampshire,  Maine,  and  North  Carolina)  associate  councils 
with  their  governors. 

For  the  rest,  there  are  a  great  many  minor  officers  of  various 
functions  in  the  different  states ;  superintendents  of  prisons,  for  instance, 
registrars  of  land  offices,  superintendents  of  labor,  bureaux  of  agriculture, 
commissioners  of  mines,  commissioners  of  immigration,  etc.  There  is 


328          THE   GOVERNMENT   OF   THE   UNITED   STATES. 

no  uniformity  between  the  administrations  of  the  states  as  regards  these 
special  offices ;  different  states  undertake  different  functions,  new  or  old, 
and  create  new,  or  revive  old,  offices  accordingly. 

The  governor's  term  of  office  is  in  almost  all  of  the  states 
either  two  or  four  years,  although  Massachusetts  gives  her  gov- 
ernor a  term  of  but  a  single  year,  while  New  Jersey  elects  hers 
for  three.  The  lieutenant-governor,  where  such  an  officer  is 
elected,  has  the  same  term  as  the  governor,  and  is  generally 
required  to  have  the  same  qualifications. 

These  qualifications  consist,  almost  always,  of  citizenship  of 
from  two  to  twenty  years'  standing,  residence  within  the  state  of 
from  one  to  ten  years,  and  age  of  from  twenty-five  to  thirty-five 
years.  In  Maine  it  is  required  that  the  governor  shall  be  a 
native-born  citizen. 

The  terms  of  the  other  principal  state  officers  are  usually 
the  same  as  the  term  of  the  governor,  though  it  is  not  uncommon 
to  give  to  treasurers,  secretaries  of  state,  attorneys-general,  and 
auditors  a  longer  tenure.  The  qualifications  required  of  the  dif- 
ferent officers  are  of  the  most  various  nature. 

The  constitutions  of  many  of  the  states  still  exhibit  the  jealousy 
of  long  terms  of  office  which  was  so  characteristic  of  the  extreme  demo- 
cratic feeling  generated  in  the  colonies  by  the  constant  friction  between 
the  representatives  of  the  people  and  officials  who  owed  their  offices,  not 
to  election,  but  to  royal  appointment.  Seven  states  limit  official  tenure 
to  a  maximum  period  of  seven  years ;  Texas  makes  two  years  the  maxi- 
mum ;  and  Massachusetts,  Virginia,  and  Maryland  give  express  constitu- 
tional sanction  to  rotation  in  office. 

Many  states  effect  such  a  limitation  with  reference  to  the  tenure 
of  the  governor's  office  by  provisions  setting  bounds  to  the  reeligibility 
of  the  governor.  Thus  some  exclude  their  governors  from  successive 
terms ;  others  allow  only  a  single  term  to  any  one  man  within  a  specific 
period  of,  say,  eight  years ;  while  still  others  withhold  reeligibility  al- 
together. 

Contrast  between  State  and  Federal  Executives.  —  The 
federal  executive  was,  as  we  have  seen  (page  289),  constituted  in 
quite  close  accordance  with  the  models  of  previous  state  organiza- 
tion ;  but  the  imitation  can  scarcely  be  said  to  have  gone  further 
than  the  adoption  of  the  suggestion  that  the  United  States  should 
have  a  single  governmental  head,  a  president,  because  the  states 


THE   GOVERNMENT    OF   THE    UNITED    STATES.  329 

had  tried  and  approved  a  single  presidency.  For  the  rest,  the 
president  was  given  the  character,  as  regards  his  relations  with 
the  other  officials  of  the  federal  system,  rather  of  an  English  sov- 
ereign than  of  a  state  governor.  Certainly  the  contrast  between 
the  official  place  and  power  of  the  president  and  the  place  and 
power  of  the  state  governors  of  the  present  day  is  a  very  sharp 
and  far-reaching  contrast  indeed.  The  president  of  the  United 
States  is  the  only  executive  officer  of  the  federal  government  who 
is  elected ;  all  other  federal  officials  are  appointed  by  him,  and 
are  responsible  to  him.  Even  the  chief  of  them  bear  to  him,  in 
theory  at  least,  only  the  relation  of  advisers ;  though  in  fact,  it 
must  be  acknowledged,  they  are  in  effect  his  colleagues.  Of  state 
officials  associated  with  the  governor  it  may,  on  the  other  hand, 
be  said  that  both  in  law  and  in  fact  they  are  colleagues  of  the 
governor,  in  no  sense  his  agents,  or  even  his  subordinates,  except 
in  formal  rank  and  precedence.  They,  like  himself,  are  elected 
by  the  people;  he  is  in  no  way  concerned  in  their  choice.  Nor 
do  they  serve  him  after  election.  They  are  not  given  him 
as  advisers;  they  are,  on  the  contrary,  coordinated  with  him. 
North  Carolina,  indeed,  calls  her  chief  officers  of  state  a  '  cabi- 
net ' ;  but  they  are  not  dependent  upon  each  other  even  in  counsel, 
and  they  are  quite  as  independent  of  the  governor  as  Congress  is 
of  the  president.  The  only  means  of  removal  to  which  the  prin- 
cipal officers  of  the  states  are  subject  is,  ordinarily,  impeachment, 
to  which  the  governor  also  is  equally  exposed.  Both  they  and 
he  may  be  charged  with  official  crimes  and  misdemeanors  by  the 
house  of  representatives,  and  tried,  convicted,  and  removed  by 
the  senate  of  the  state.  Their  only  other  responsibility  is  to  the 
courts  of  law,  to  which,  like  other  citizens,  they  are  answerable, 
for  actual  breaches  of  law.  Governor,  treasurer,  secretary  of 
state,  attorney-general,  —  all  state  officers  alike,  serve,  not  other 
officers,  but  the  people,  who  elected  them ;  upon  the  people  they 
are  dependent,  not  upon  each  other ;  they  constitute  no  hierarchy, 
but  stand  upon  a  perfect  equality. 

In  the  states  of  Delaware,  Maryland,  New  Jersey,  Pennsylvania,  and 
Texas  the  secretaries  of  state  are  appointed  by  the  governor,  subject  to 
confirmation  by  the  senate  ;  in  several  states  the  attorney-general  also  is 
appointed  ;  nor  is  it  uncommon  for  the  state  superintendent  of  education 


330          THE  GOVERNMENT   OP   THE  UNITED   STATES. 

to  be  an  appointee  of  the  governor  ;  and  these  facts  offer  apparent  contra- 
diction to  the  statement  that  the  several  constituent  parts  of  the  state  ex- 
ecutives stand  always  apart  in  complete  independence  and  coordination, 
—  especially  when  it  is  added  that  in  one  or  two  states  officers  so  impor- 
tant as  the  secretary  of  state  and  the  attorney-general  hold  during  the 
pleasure  of  the  governor.  Several  of  the  states  empower  their  governors 
to  suspend  or  remove  subordinate  officers  against  whom  charges  are  pre- 
ferred, and  to  institute  criminal  proceedings  against  them  in  the  courts. 
Maryland  authorizes  the  summary  removal  of  sundry  minor  officials  by 
the  governor,  and  Michigan  and  New  York  even  the  suspension  of  the  sec- 
retary of  state  or  the  treasurer,  in  case  of  corruption  or  gross  misconduct, 
until  the  legislature  can  act ;  and  in  Delaware  the  governor  can  remove 
any  public  officer  "  convicted  of  misbehaving  while  in  office,  or  of  any  in- 
famous crime."  But  these  cases  constitute  in  fact  no  real  exceptions: 
for  the  duties  of  such  officers,  after  their  appointment,  are  prescribed  by 
constitutional  provision  or  by  statute,  not  by  the  governor ;  and  the 
governor  may  remove  them,  not  at  his  whim,  or  for  mere  administra- 
tive reasons,  but  for  just  cause  only,  and  as  if  he  acted  as  an  officer  of 
justice.  In  brief,  even  when  appointed  by  him,  they  do  not  depend  upon 
him. 

Heal  Character  of  a  State  *  Executive.'  —  The  governor 

therefore,  is  not  the  '  Executive ' ;  he  is  but  a  single  piece  of  the 
executive.  There  are  other  pieces  coordinated  with  him  over 
which  he  has  no  direct  official  control,  and  which  are  of  less 
dignity  than  he  only  because  they  have  no  power  to  control 
legislation,  as  he  may  do  by  the  exercise  of  his  veto,  and  because 
his  position  is  more  representative,  perhaps,  of  the  state  govern- 
ment as  a  whole,  of  the  people  of  the  state  as  a  unit.  Indeed  it 
may  be  doubted  whether  the  governor  and  other  principal  officers 
of  a  state  government  can  even  when  taken  together  be  correctly 
described  as  'the  executive,'  since  the  actual  execution  of  the 
great  majority  of  the  laws  does  not  rest  with  them  but  with  the 
local  officers  chosen  by  the  towns  and  counties  and  bound  to 
the  central  authorities  of  the  state  by  no  real  bonds  of  responsi- 
bility whatever.  Throughout  all  the  states  there  is  a  significant 
distinction,  a  real  separation,  between  ( state '  and  '  local '  officials ; 
local  officials  are  not  regarded,  that  is,  as  state  officers,  but  as 
officers  of  their  districts  only,  responsible  to  constituents,  not  to 
central  authorities.  Throughout  the  country  the  sheriffs  and 
other  county  officers,  the  county  treasurers,  clerks,  surveyors. 


THE   GOVERNMENT  OF  THE   UNITED   STATES.  331 

commissioners,  etc.,  and  the  town  and  city  officials  also,  as  well 
as  the  judges  of  the  courts  and  the  solicitors  or  district  attorneys 
who  represent  the  public  authority  before  the  courts,  are,  almost 
without  exception,  chosen  by  the  voters  of  limited  areas,  and  are 
regarded,  for  the  most  part,  as  serving,  not  the  state,  but  their 
part  of  the  staff.  Minor  'state'  officers  there  are,  —  minor  officers, 
that  is,  who  ministerially  serve  the  central  offices,  —  and  these 
are  often  appointed  by  the  governor ;  but  it  is  exceptional  for  the 
governor  to  control  the  local  authorities  by  whom  the  laws  are  in 
fact  put  into  actual  operation.  The  president  of  the  United  States 
is  the  veritable  chief  and  master  of  the  official  forces  of  the  fed 
eral  government ;  he  appoints  and  in  most  cases  can  remove  all 
federal  marshals,  district  attorneys,  revenue  officers,  post-office 
officials.  But  the  governor  of  a  state  occupies  no  such  position ; 
nor  does  any  high  '  state '  official ;  the  central  offices  of  a  state 
constitute  a  system  of  supervision  and  report  often,  but  seldom 
a  system  of  control. 

In  Michigan,  it  is  true,  all  officials  not  legislative  or  judicial  may 
be  removed  by  the  governor  for  just  legal  cause  ;  in  New  York,  too, 
sheriffs,  coroners,  district  attorneys,  and  county  clerks  are  removable  by 
the  same  authority,  and  in  Wisconsin  sheriffs,  coroners,  district  attorneys, 
and  registrars  of  deeds  ;  but  such  provisions  are  exceptional,  and  are  not 
accompanied  by  a  system  of  continuous  central  control.  Government 
remains  disjointed,  —  still  lies  in  separated  parts. 

Relations  of  the  Local  to  the  Central  Organs  of  Govern- 
ment in  the  States.  —  It  is  characteristic  of  our  state  organization, 
therefore,  that  the  counties,  townships,  and  cities  into  which  the 
states  are  divided  for  purposes  of  local  government  do  not  serve 
as  organs  of  the  states  exactly,  but  rather  as  independent  organ- 
isms, constituted  what  they  are  by  state  law,  indeed,  but,  after 
being  set  up,  left  to  themselves  almost  as  entirely  as  if  they  were 
self-constituted.  They  elect  their  own  officers,  and,  except  for 
the  occasional  mandates  of  the  courts,  go  their  own  paces  in  en- 
forcing the  general  laws  of  the  state. 

Our  local  areas  are  not  governed,  in  brief  ;  they  act  for  themselves. 
Self-government  implies,  when  used  in  its  strict  historical  meaning,  that 
the  officers  of  local  administration  are  officers  of  the  state,  of  the  central 


332  THE   GOVERNMENT    OF    THE    UNITED    STATES. 

authority,  whatever  may  be  the  machinery  of  their  appointment,  and  that 
their  responsibility  is  central,  instead  of  to  their  neighbors  merely.  The 
only  sense  in  which  the  local  units  of  our  state  organizations  are  governed 
at  all  is  this,  that  they  act  under  general  laws  which  are  made,  not  by 
themselves,  but  by  the  central  legislatures  of  the  states.  These  laws  are 
not  executed  by  the  central  executive  authorities,  or  under  their  control, 
but  only  by  local  authorities  acting  in  semi-independence.  They  are,  so 
to  say,  left  to  run  themselves. 

The   Governor. — The   usual  duties  of  a  state  governor 
may   be   conveniently   summed   up   under   four   general   heads : 

(1)  As  towards  the  legislature,  it  is  his  duty  to  transmit  to  the 
houses  at  each  regular  session,  and  at  such  other  times  as  may  be 
required,  full  information  concerning  the  state  of  the  common- 
wealth, and  to  recommend  to  them  such   measures   as  seem  to 
him  necessary  for  the  public  good.     It  is  also  his  duty  in  case 
of  necessity  for  such  a  step,  or  upon  the  requisition  of  a  sufficient 
number  of  legislators,  to  summon   the  houses  to  extra  session. 

(2)  He  is  commander-in-chief  of  the  state  militia,  and  as  such 
is  bound  to  see,  not  only  that  foreign  invasion  is  repelled,  but 
also  that  internal  order  is  preserved.     (3)  He  exercises  the  clem- 
ency of  the  state  towards  condemned  persons,  having  the  right 
to  grant  pardons  to  persons   convicted  of  crime,  to  remit  fines 
and  penalties,  under  certain  conditions,  and  to  remove  political 
disabilities   incurred   in    consequence    of    conviction   of   crime; 
though  he  exercises  these   high  prerogatives  subject  always  to 
a  definite  responsibility  to  public  opinion  and  to  the  laws. 

In  some  states,  as  notably  in  Pennsylvania,  the  power  of  grant- 
ing pardons  is  given  to  the  governor,  however,  only  in  form,  the  sanction 
of  a  Board  of  Pardons  being  made  necessary,  whose  action  is  semi-judicial. 
In  New  Jersey  there  is  a  judicial  committee  on  pardons  ;  and  in  Connecti- 
cut the  legislature  alone  can  pardon :  the  governor  can  only  reprieve  until 
the  end  of  the  next  session  of  the  legislature. 

(4)  In  all  the  states  with  the  single  exception  of  North 
Carolina  the  governor's  assent  is  made  necessary  to  the  va- 
lidity of  all  laws  not  passed  over  his  dissent  by  a  special 
legislative  vote  upon  a  second  consideration  made  in  full  view 
of  his  reasons  for  withholding  his  signature.  And  in  Rhode 
Island,  Ohio,  and  North  Carolina,  though  the  governor  has  no 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  333 

veto  properly  so-called,  he  can  compel  the  reconsideration  of  any 
measure  by  the  legislature. 

All  bills  which  the  governor  signs,  or  upon  which  he  does  not 
take  any  action  within  a  certain  length  of  time,  become  law  ;  those  which 
he  will  not  sign  he  must  return  to  the  legislature  with  a  statement  of  his 
objections.  Generally  he  must  return  bills  which  he  thus  rejects  to  the 
house  in  which  they  originated,  though  in  Kansas  he  must  return  them 
always  to  the  house  of  representatives. 

The  vote  by  which  a  bill  may  be  passed  over  the  governor's  veto 
varies  very  widely  among  the  states.  In  Connecticut  a  mere  majority 
suffices  for  its  second  passage ;  in  other  states  a  three-fifths  vote  is  re- 
quired, in  some  a  two-thirds  vote  ;  sometimes  a  majority  of  elected  mem- 
bers (instead  of  a  special  number  within  a  mere  quorum)  must  concur 
in  a  second  passage ;  and  sometimes  two-thirds  of  the  elected  members. 
In  Missouri  it  is  provided  that  the  votes  of  two-thirds  of  the  elected 
members  shall  be  necessary  in  the  house  in  which  the  measure  originated, 
while  a  mere  majority  of  the  other  house  will  suffice. 

In  many  of  the  states  the  governor  is  given  the  power  to  veto 
particular  items  in  appropriation  bills ;  as  regards  all  other  bills  his 
approval  or  disapproval  must  cover  all  of  the  measure  or  none  of  it. 

The  Secretary  of  State.  —  The  title  '  Secretary  of  State,' 
borne  by  a  conspicuous  officer  in  each  of  the  states,  is  very  apt 
to  mislead  those  who  have  studied  the  English  executive  or  the 
functions  of  our  own  federal  minister  of  foreign  affairs.  The 
federal  Secretary  of  State  is  first  of  all  an  executive  minister, 
only  secondarily  a  secretary ;  and  the  five  principal  Secretaries 
of  State  in  England  are  equally  without  prominent  secretarial 
functions.  They  are  one  and  all  executive  heads  of  department. 

The  federal  Secretary  of  State  is  entitled  to  his  official  name 
chiefly  by  virtue  of  certain  minor  duties  seldom  thought  of  by  the  public 
in  connection  with  the  Department  of  State.  He  has  charge,  for  example, 
of  the  seal  of  the  United  States ;  he  preserves  the  originals  of  all  laws  and 
of  all  orders,  resolutions,  or  votes  of  the  houses  which  have  received  the 
force  of  law ;  he  furnishes  to  Congress,  besides  consular  and  diplomatic 
reports,  lists  of  passengers  arrived  in  the  United  States  .from  foreign 
countries,  etc. 

The  chief  clerical  features  of  the  office  which  the  five  Principal 
Secretaries  of  State  in  England  theoretically  share  (page  198)  would  seem 
to  be  represented  by  the  necessity  of  the  countersignature  of  some  one  of 
them  to  the  validity  of  the  sign-manual. 


334  THE   GOVERNMENT    OF    THE    UNITED    STATES. 

The  Secretaries  of  State  in  the  commonwealths  of  our 
Union,  on  the  contrary,  can  show  substantial  cause  for  holding 
their  title ;  the  making  and  keeping  of  records  is  the  central 
duty  of  their  office.  It  is  usually  their  duty  to  register  the 
official  acts  of  the  governor,  to  enroll  and  publish  the  Acts  of 
the  Legislature,  to  draw  up  all  commissions  issued  to  public 
officers,  to  keep  all  official  bonds,  to  record  all  state  titles  to 
property,  to  keep  and  affix,  where  authorized,  the  seal  of  the 
commonwealth,  to  preserve  accurate  maps  and  careful  records 
of  the  boundaries  of  the  various  civil  districts  of  the  state, 
(the  counties,  townships,  etc.)  and  to  give  to  all  who  legally 
apply  duly  attested  copies  of  the  public  documents  in  their 
keeping.  In  brief,  the  Secretary's  office  is  the  public  record 
office. 

Often  other  duties  are  assigned  to  the  Secretary  of  State.  In 
one  state,  for  instance,  he  is  constituted  Internal  Improvement  Com- 
missioner; in  another  Surveyor-general.  But  such  additional  functions 
are  not  necessarily  characteristic  of  his  office. 

1200.  It  is  to  the  Secretary  of  State  in  each  commonwealth  that  the 
votes  of  the  state's  electors  for  President  and  Vice-President  are  re- 
turned ;  and  it  is  he  who  transmits  them  to  the  president  of  the  Senate 
to  be  opened  in  the  joint  session  of  the  two  houses. 

Votes  in  state  elections  also  are  generally  returnable  to  the 
Secretary  of  State's  office,  and  the  Secretary  of  State  is  very  commonly 
one  of  the  state  canvassers  of  election  returns.  Such  duties  manifestly 
flow  very  naturally  from  the  general  duties  of  his  office. 

The  Comptroller,  or  that  equivalent  officer,  the  state 
Auditor,  is  public  accountant.  It  is  his  function  to  examine 
and  pass  upon  all  claims  presented  against  the  state  under 
existing  provisions  of  law ;  to  audit  the  accounts  of  all  officers 
charged  with  the  collection  of  the  revenue  of  the  state,  filing 
their  vouchers,  requiring  of  them  the  necessary  bonds,  and 
crediting  them  with  all  sums  for  which  they  present  the  state 
Treasurer's  receipt ;  to  ensure  uniformity  in  the  assessment  and 
collection  of  the  public  revenue  by  preparing  and  furnishing  to 
the  local  fiscal  officers  the  proper  forms  and  instructions ;  to 
issue  warrants  for  all  legal  disbursements  of  money  from  the 
treasury  of  the  state,  keeping  a  careful  account  with  the  state 
treasurer;  to  submit  his  books  and  accounts  at  any  time  to 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  335 

examination  by  the  legislature,  —  in  a  word,  to  regulate  the 
assessment,  collection,  and  disbursement  of  the  public  moneys. 
The  State  Treasurer  may  be  said  simply  to  keep  the 
public  moneys  subject  to  the  warrants  of  the  Comptroller. 
Without  such  warrant  he  can  pay  out  nothing. 

These,  manifestly,  are  not  offices  of  control.  The  Comptroller, 
for  example,  can  generally  proceed  against  local  fiscal  officers  through 
the  local  law-representatives  of  the  state,  the  local  states-attorneys,  in  the 
ordinary  courts,  for  the  purpose  of  securing  the  necessary  bonds  when 
these  are  not  promptly  or  properly  given,  or  of  enforcing  the  payment  of 
moneys  withheld  or  uncollected  ;  and  he  may  make  test  of  the  validity  or 
sufficiency  of  official  bonds  by  any  means  within  his  reach ;  but  he  has 
none  but  this  indirect  control,  exercised  through  the  courts  over  officers 
who  refuse  bond  or  who  neglect  the  forms  and  instructions  issued  to  them 
regarding  the  assessment  and  collection  of  taxes.  The  whole  machinery 
of  control  is  local,  not  central,  —  through  courts  and  states-attorneys  who 
are  themselves  elected  by  the  same  persons,  in  town  or  county,  by  whom 
the  collecting  officers  themselves  are  chosen.  The  local  fiscal  officers  are 
not  officers  of  the  state  treasury,  but  officers  of  the  towns  and  counties 
whom  the  state  employs  as  its  agents. 

The  State  Superintendent  of  Education  often  occupies  a 
somewhat  different  position.  It  is  frequently  his  prerogative 
to  prescribe  the  qualifications  of  teachers  and  the  methods  by 
which  they  are  to  be  selected ;  he  is  required  to  make  a  thorough 
inspection  of  the  schools  throughout  the  state ;  often  he  is 
given  power  to  secure  proper  reports  of  school  work  through 
special  inspectors  appointed  to  act  instead  of  local  superin- 
tendents whose  reports  are  irregular  or  unsatisfactory.  School 
administration  is  recognized  to  require  a  certain  degree  of 
centralization  of  administrative  authority,  and  so  to  constitute 
a  legitimate  exception  to  the  general  rules  as  to  the  constitution 
of  executive  power  in  the  states.  Still,  even  the  power  of  a 
state  Superintendent  of  Education  does  not  often  go  very  much 
beyond  supervision.  The  powers  of  district  or  township  school 
directors  remain  in  most  cases  very  absolute  as  regards  the 
management  of  the  schools.  They  are  governed  by  statute,  not 
by  the  state  Superintendent. 

Constitutional  Diffusion  of  the  Executive  Power.  — The 
constitutions  of  at  least  seven  of  the  states  make  very  frank  confession  of 


386  THE   GOVERNMENT    OF   THE    UNITED   STATES. 

the  diffusion  of  executive  authority  upon  which  I  have  dwelt  as  character, 
istic  of  our  state  system.  Thus  the  constitution  of  Alabama  provides  that 
the  executive  power  "shall  consist  of  the  governor,  secretary  of  state, 
state  treasurer,  state  auditor,  attorney-general,  and  superintendent  of 
education,  and  the  sheriff  for  each  county."  The  constitutions  of  Arkan- 
sas, Colorado,  Illinois,  Minnesota,  Pennsylvania,  and  Texas  make  similar 
enumerations,  with  the  exception  of  the  sheriffs  of  the  counties.  The 
Florida  constitution  of  1868  provided  that  the  governor  should  be  "as- 
sisted by  a  cabinet  of  administrative  officers"  appointed  by  himself,  sub- 
ject to  the  confirmation  of  the  senate ;  but  clothed  these  officers  with 
functions  which  made  them  in  fact  not  assistants  but  colleagues. 

The  constitutions  of  most  of  the  other  states  declare  the  execu- 
tive power  to  be  vested  in  the  governor,  but  are  hardly  through  with  out- 
lining his  functions  before  they  provide  for  the  erection  of  executive 
departments  among  which  the  greater  part  of  executive  power  shall  be 
parcelled  out ;  so  that  the  arrangement  is  everywhere  practically  that 
of  those  states  which  in  effect  declare  the  executive  office  to  be  'in  com- 
mission' by  enumerating  the  officers  who  are  to  divide  its  duties. 

Full  Legal,  but  no  Hierarchical,  Control.  —  This,  then,  is 
the  sum  of  the  whole  matter :  the  control  of  law,  exercised  through  the 
courts,  is  thorough  and  complete :  statutes  leave  to  no  officer,  either  cen- 
tral or  local,  any  considerable  play  of  discretionary  power :  so  far  as  pos- 
sible they  command  every  officer  in  every  act  of  his  administration.  But 
no  hierarchy  stands  between  an  officer  and  the  law.  The  several  func- 
tions of  executive  power  are  segregated,  —  each  official,  so  to  say,  serves  his 
own  statute.  So  thorough  is  the  control  attempted  by  legislation,  —  and 
so  potent  among  us  is  the  legal  habit  and  conscience,  the  law-abiding 
sense,  —  that  no  official  control,  no  hierarchical  organization  has  been 
deemed  necessary. 

LOCAL  GOVERNMENT. 

General  Characteristics.  —  The  large  freedom  of  action 
and  broad  scope  of  function  given  to  local  authorities  is  the  dis- 
tinguishing characteristic  of  the  American  system  of  government. 
Law  is  central,  in  the  sense  of  being  uniform  and  the  command 
of  the  central  legislature  in  each  state ;  and  its  prescriptions  are 
minute ;  but  function  and  executive  power  are  local.  There  is  a 
single  comprehensive  statutory  plan,  but  a  host  of  unassociated 
deputies  to  carry  it  into  effect,  an  infinite  variety  in  the  local 
application  of  its  principles.  General  laws  are  given  to  the 
localities  by  state  legislation,  and  these  laws  are  generally  char- 
acterized by  a  very  great  degree  of  particularity  and  detail  of 


THE   GOVERNMENT   OF   THE    UNITED   STATES.  337 

provision ;  but  no  central  authority  has  executive  charge  of  their 
application :  each  locality  must  see  to  it  for  itself  that  they  are 
carried  out. 

Duties  of  Local  Government.  —  The  duties  of  local  gov- 
ernment include  Police,  Sanitation,  the  Care  of  the  Poor,  the 
Support  and  Administration  of  Schools,  the  Construction  and 
Maintenance  of  Koads  and  Bridges,  the  Licensing  of  Trades,  the 
Assessment  and  Collection  of  Taxes,  besides  the  Administration 
of  Justice  in  the  lower  grades,  the  maintenance  of  Court  Houses 
and  Jails,  and  every  other  affair  that  makes  for  the  peace,  con- 
venience, comfort,  and  local  good  government  of  the  various 
and  differing  communities  of  each  commonwealth.  In  many 
places  libraries  are  included  among  the  institutions  given  into 
the  charge  of  the  officers  of  local  government.  Local  officers 
look  to  state  laws  for  their  authority ;  but  practically  state 
administration  represents  only  the  unifying  scheme  of  local 
government.  Local  administration  is  the  administration  of  the 
state. 

Local  Varieties  of  Organization.  —  Almost  without  excep- 
tion the  states  which  have  been  added  to  the  original  thirteen  by 
which  the  Union  was  formed  have  derived  their  local  institutions, 
whether  by  inheritance  or  by  imitation,  from  the  mother  states 
of  the  Atlantic  seaboard.  Wherever  New  England  settlers  have 
predominated  the  township  has  taken  quick  rootage  and  had  a 
strong  growth  ;  wherever  Southern  men  have  gone  the  county  has 
found  favor  above  other  forms  of  local  organization;  wherever 
the  people  from  the  two  sections  have  met  and  mixed,  as  in  the 
early  days  they  met  and  mixed  in  New  York,  New  Jersey,  and 
Pennsylvania,  the  same  combination  or  mixture  of  institutions 
that  is  characteristic  of  the  middle  Atlantic  states  is  found  in 
full  prominence.  But  in  all  cases  the  new  foundations  in  the 
West  have  this  common  feature :  they  have  all  been  in  a  greater 
or  less  degree  artificially  contrived.  Towns  have  not  grown  up 
in  the  Northwest  for  the  same  reasons  that  led  to  their  growth 
in  New  England,  in  the  days  when  isolation  was  necessary  and 
when  isolation  involved  compact  and  complete  self-government: 
they  have,  on  the  contrary,  been  deliberately  constructed  in 
imitation  of  New  England  models.  Neither  have  Western  coun- 


338  THE   GOVERNMENT   OF    THE   UNITED    STATES. 

ties  been  developed  by  processes  of  pioneer  agricultural  expan- 
sion like  those  which  made  the  irregular,  and  in  a  sense 
geographically  natural,  counties  of  Virginia  (pages  271-273) ; 
they  have,  on  the  contrary,  been  geometrically  laid  off  in  the 
exact  squares  of  the  government  survey  and  deliberately  organ- 
ized after  the  Southern  fashion  because  the  settlers  wanted  to 
reproduce  by  statute  the  institutions  which  in  their  old  homes 
had  been  evolved  by  slow,  unpremeditated  growth.  The  institu- 
tions of  the  admitted  states,  in  a  word,  were  transplanted  by 
enactment,  whereas  the  institutions  of  the  original  states  were 
sown  by  habit.  It  by  no  means  follows  that  these  newer  institu- 
tions lack  naturalness  or  vigor :  in  most  cases  they  lack  neither, 
—  a  self-reliant  race  has  simply  readapted  institutions  common 
to  its  political  habit ;  but  they  do  lack  the  individuality  and  the 
native  flavor  often  to  be  found  in  the  institutions  in  whose  like- 
ness they  were  made. 

The  differences  of  institution,  then,  which  show  them- 
selves in  the  East  between  local  government  in  New  England, 
local  government  in  the  South,  and  local  government  in  the  cen- 
tral belt  of  Atlantic  states  extend  also  into  the  West.  There,  too, 
we  find  the  three  types,  the  township  type,  the  county  type,  and 
the  compound  type  which  stands  between  the  two ;  but  the  com- 
pound type  is  in  the  West  naturally  the  most  common.  The  West- 
erner has  had  the  sagacity  to  try  to  combine  the  advantages  of 
all  the  experiments  tried  in  the  older  states,  rejoicing  in  being 
fettered  by  no  hindering  traditions,  and  profiting  by  being  re- 
strained by  no  embarrassing  incapacity  for  politics. 

Keeping  these  facts  in  mind,  it  will  be  possible  to  con- 
sider without  confusion,  the  Township,  the  County,  the  School 
District,  the  Town,  and  the  City  as  elements  of  local  government 
in  the  United  States.  The  different  place  and  importance  given 
to  each  of  these  organs  in  different  sections  may  be  noted  as  we 
proceed. 

The  Township :  its  Historical  Origin.  —  The  township  is 
entitled  to  be  first  considered  in  every  description  of  local  gov- 
ernment in  the  United  States  not  only  because  it  is  a  primary 
unit  of  administration,  but  also  by  reason  of  its  importance  and 
because  of  its  ancient  and  distinguished  lineage.  It  is  a  direct 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  339 

lineal  descendant  from  the  primitive  communal  institutions  which 
Caesar  and  Tacitus  found  existing  in  the  vigor  of  youth  among 
the  peoples  living  in  the  ancient  seats  of  our  race.  The  New 
England  town  was  not  an  American  invention ;  and  the  settlers 
upon  the  northern  coasts  did  not  adopt  the  town  system  simply 
because  they  were  obliged  to  establish  themselves  in  isolated 
settlements  in  a  harsh  climate  and  among  hostile  native  tribes. 
We  have  seen  (pages  268,  269)  that  they  kept  together  in  close 
settlements  for  religious  purposes,  for  mutual  defence,  and  for 
purposes  of  trade,  and  that  their  settlements  were  often  com- 
pletely isolated  by  stretches  of  wild  primeval  forest ;  but  their 
form  of  government,  or  at  least  the  talent  and  disposition  for 
it,  they  brought  with  them,  an  inheritance  of  untold  antiquity. 
Their  political  organization  was  like  a  spontaneous  reproduc- 
tion of  the  ancient  Germanic  mark.  In  most  cases  they  re- 
garded the  land  upon  which  they  settled  as  the  property  of 
the  community,  just  as  their  remote  barbarian  ancestors  had 
done ;  like  those  ancestors,  they  divided  the  land  among  families 
and  individuals  or  worked  it  in  common  as  might  be  decided  by 
public  vote  in  general  assembly,  in  open  '  folk-moot '  we  may  call 
it.  This  same  '  town-meeting,'  as  they  styled  it,  voted  the  com- 
mon discipline,  elected  the  officers,  and  made  the  rules  of  common 
government.  Each  group  of  colonists  constituted  themselves  a 
state  with  a  governing  primary  assembly.  They  reestablished, 
too,  the  old  principles  of  folk-land.  Whether  they  tilled  their 
lands  in  common  or  divided  them  in  severalty,  they  had  always 
a  communal  domain,  part  of  which  was  kept  as  open  common 
for  the  general  pasturage,  and  the  rest  of  which  was  given  over 
in  parcels,  from  time  to  time,  for  settlement.  They  were  invent- 
ing nothing ;  they  were  simply  letting  their  race  habits  and  in- 
stincts have  natural  play.  Their  methods  showed  signs  at  almost 
every  point  of  having  been  filtered  through  intervening  English 
practices ;  but  they  rested,  none  the  less,  upon  original  Teutonic 
principles. 

The  exceptions  to  the  principle  of  folk-land  occurred  where,  as 
in  the  Hartford,  Windsor,  and  Wethersfield  settlements  on  the  Connecti- 
cut, the  land  was  held,  not  in  common  by  the  civil  community,  but  in 
common  by  a  sort  of  corporation  of  joint  owners  under  whose  supervision 


340  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

the  new  colonies  were  established.     These  joint  owners  were  quite  distinct 
from  the  communal  authorities.1 

Absorption  of  the  Town  in  Larger  Units  of  Govern- 
ment. —  It  was  towns  of  this  primitive  pattern  that  were  drawn 
together  ultimately  into  the  New  England  colonies  of  the  later 
time,  by  the  processes  I  have  already  described  (page  269) ;  and 
in  becoming  parts  of  larger  organizations  they  lost  to  some 
extent  their  independence  of  movement,  as  well  as  in  some 
slight  degree  their  individuality  also.  In  some  cases,  as  for 
instance  in  the  coalescence  of  '  Connecticut '  and  New  Haven 
(page  278),  the  establishment  of  central  state  legislative  control 
over  the  towns  took  the  shape  of  a  mere  confirmation  to  them  of 
their  old  functions  and  privileges,  and  in  this  way  fully  recog- 
nized their  elder  and  once  sovereign  place  in  the  historical  de- 
velopment of  the  commonwealth;  but  it  in  all  cases  necessarily 
resulted  in  their  virtual  subordination.  It  led  also  to  the  creation 
of  new  areas  of  local  government.  Towns  were  grouped,  at  first 
for  judicial  purposes  only,  into  counties,  and  the  counties  came 
in  time  to  furnish  a  very  convenient  basis  for  certain  adminis- 
trative functions  once  vested  exclusively  in  the  smaller  areas. 
Great  cities,  too,  presently  grew  up  to  demand  more  complex, 
less  simply  and  directly  democratic,  methods  than  those  of  the 
towns.  But  no  change  has  seriously  threatened  town  organiza- 
tion with  destruction.  The  'town'  is  still  the  most  character- 
istic and  most  vital  element  of  local  government  in  New 
England;  and  it  still  has  substantially  the  same  officers,  sub- 
stantially the  same  functions,  that  it  possessed  at  its  foundation 
in  America. 

An  influx  of  foreigners  has  in  many  places  disturbed  and 
impaired  the  town  system,  and  the  cities,  which  draw  to  themselves  so 
rapidly  the  rural  population,  but  which  are  too  big  for  the  primitive 
methods  of  town  government,  are  powerful  disintegrating  elements  in 
the  midst  of  the  old  organization ;  but  the  new  adaptation  and  develop- 
ment of  the  township  in  the  West,  and  the  tendency  to  introduce  it 
in  some  parts  of  the  South,  seem  still  to  promise  it  honor  and  length 
of  days. 

1  See  Andrews,  The  River  Towns  of  Connecticut  (Johns  Hopkins  Studies, 
7th  Series). 


THE   GOVERNMENT    OF    THE   UNITED    STATES.  341 

Town-meeting.  —  The  sovereign  authority,  the  motive 
power,  of  town  government  is  the  Town-meeting,  the  general 
assembly  of  all  the  qualified  voters  of  the  town,  which  has 
reminded  so  many  admiring  observers  of  the  ancient  Grecian 
and  Roman  popular  assemblies  and  of  the  Landsgemeinde  of 
Switzerland.  The  regular  session  of  this  assembly  is  held  once 
a  year,  usually  in  the  spring,1  but  extra  sessions  are  held  from 
time  to  time  throughout  the  year  as  occasion  arises,  due  notice 
being  given  both  of  the  time  of  meeting  and  of  the  exact 
business  to  be  considered.  Town-meeting  elects  all  officers, — 
its  regular  annual  session  being  the  session  for  elections,  —  and 
decides  every  affair  of  local  interest.2  It  is  presided  over  by  a 
'  Moderator '  and  attended  by  the  town  officers,  who  must  give  a 
full  account  of  their  administration,  and  who  must  set  before  the 
Meeting  a  detailed  statement  of  the  sums  of  money  needed  for 
local  government.  These  sums,  if  approved,  are  voted  by  the 
Meeting  and  their  collection  ordered,  on  a  prescribed  basis  of 
assessment.  Everything  that  the  officials  and  committees  of  the 
town  have  done  is  subject  to  be  criticised,  everything  that  they 
are  to  do  is  subject  to  be  regulated  by  the  Meeting. 

The  Town  Officers.  —  The  officers  of  the  town  are  certain 
'  Selectmen/  from  three  to  nine  in  number,  according  to  the  size  and 
needs  of  the  town,  who  constitute  the  general  executive  authority 
for  all  matters  not  otherwise  assigned ;  a  Town  Clerk,  who  is  the 
keeper  of  the  town  records  and  registers ;  a  Treasurer ;  Assessors; 
whose  duty  it  is  to  make  valuation  of  all  property  for  tax  assess- 
ment ;  a  Collector  of  the  taxes  voted  by  the  Meeting  or  required 
by  the  county  and  state  authorities;  a  School  Committee;  and  a 
variety  of  lesser  officers  of  minor  function,  such  as  Constables, 
together  with  certain  committees,  such  as  library  trustees,  etc. 
Generally  there  are  also  overseers  of  the  poor  and  surveyors  of 
highways. 

To  this  corps  of  officers  all  the  functions  of  local  gov- 
ernment belong.  The  county  authorities  cannot  enter  their 

1  In  Connecticut  in  the  autumn. 

2  In  some  of  the  coast  towns  (townships),  as  notably  in  Connecticut,  the 
regulation  of  the  use  of  the  oyster  beds  is  a  very  prominent  question  in 
town-meeting. 


342     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

domain,  but  must  confine  themselves  to  the  judicial  duties 
proper  to  them  and  to  such  administrative  matters  as  the  lay- 
ing out  of  inter-town  roads,  the  issuing  of  certain  county  licenses, 
the  maintenance  of  county  buildings,  etc.,  for  the  due  oversight 
of  which  larger  areas  than  the  town  seem  necessary.  County 
expenses  are  defrayed  by  taxes  raised  by  the  towns :  the  county 
authorities  apportion  such  taxes,  but  do  not  lay  them. 

In  Rhode  Island  the  only  county  officials  are  those  connected 
with  the  administration  of  justice. 

The  Township  of  the  Northwest. — The  town  may, 
therefore,  be  said  to  exist  in  New  England  in  its  full  historical 
character  and  simplicity,  though  much  overshadowed  by  great 
cities,  and  everywhere  modified  and  partially  subordinated  by 
the  later  developments  of  state  and  county.  In  the  Northwest, 
whither  New  England  emigrants  have  gone,  it  has  entered  an- 
other phase  and  taken  on  another  character,  —  a  character  which 
may  perhaps  foreshadow  its  ultimate  organization,  should  the 
country  have  at  any  future  time  the  uniform  practices  of  local 
government  now  dimly  promised  by  certain  incipient  forces  of 
institutional  interchange  and  imitation. 

In  the  first  place,  the  Northwestern  township  is  more 
thoroughly  integrated  with  the  county  than  is  the  New  England 
township.  County  and  township  fit  together  as  pieces  of  the 
same  organism.  In  New  England  the  township  is  older  than  the 
county,  and  the  county  is  a  grouping  of  townships  for  certain 
purposes ;  in  the  Northwest,  on  the  contrary,  the  county  has  in 
all  cases  preceded  the  township,  and  townships  are  divisions  of 
the  county. 

The  county  preceded  the  township  because  the  county 
furnishes,  for  our  people,  the  natural  basis  of  organization  for  a 
scattered  agricultural  population  ;  the  township  came  afterwards, 
in  obedience  to  the  habit  of  the  New  England  settlers,  as  the 
natural  organization  for  a  population  which  had  become  more 
numerous  and  which  had  drawn  together  into  closer  association. 

Its  Origin.  —  It  was  school  organization  that  supplied  the 
beginnings  of  the  township  system  in  all  the  more  newly  settled 
portions  of  the  country.  The  Western  township  has  sprung  out 


THE   GOVERNMENT    OF   THE    UNITED   STATES.  343 

cf  the  school  as  the  New  England  township  of  the  earliest  days 
sprang  out  of  the  church.  The  government  surveyor,  who  has 
everywhere  preceded  final  settlement  in  the  West,  has  in  all  cases 
mapped  out  the  land  in  regular  plots  of  thirty-six  square  miles 
each,  which,  for  convenience,  he  called  '  townships  ' ;  and  in  every 
township  Congress  has  reserved  at  least  a  square  mile  of  land 
(one  ' section')  for  the  endowment  of  schools.  This  endowment 
had  to  be  administered  by  the  settlers ;  school  organization  had 
to  be  effected;  the  name  township  had  already  been  given  to 
the  district  so  endowed;  and  there  was,  therefore,  naturally 
school  organization  on  the  basis  of  the  township.  From  this 
there  eventually  issued  an  equally  natural  growth  of  local  politi- 
cal institutions.1 

Spread  of  Township  Organization.  —  In  the  newer  por- 
tions of  the  country  the  development  of  the  township  has  pro- 
gressed almost  in  direct  ratio  with  the  development  of  local 
government:  in  many  sections,  even  where  population  is  com- 
paratively dense,  county  organization  has  been  made  to  suffice 
for  such  districts  as  have  not  assumed  the  structure  and  privi- 
leges of  village  or  city  incorporation;  but  wherever  any  special 
effort  has  been  made  to  perfect  local  rural  organization  for  ad- 
ministrative purposes,  the  township  has  been  accepted  as  the  best 
model  of  political  association. 

It  has  received  its  widest  acceptance  in  such  middle  states  as 
New  York  and  Pennsylvania,  and  in  the  great  Northwestern  states  of 
Michigan,  Wisconsin,  Illinois,  and  Minnesota.  Elsewhere,  in  the  middle 
West,  in  Ohio,  Indiana,  and  Kansas,  for  example,  and  in  such  states  of 
the  far  West  as  California,  it  is  less  fully  developed,  and  occupies  a  much 
more  subordinate  place  as  compared  with  the  county.  The  county, 
indeed,  may  be  said  to  be  the  prevalent  unit  of  local  government  in  Cali- 
fornia, as  well  as  in  Colorado,  Oregon,  Nebraska,  and  Nevada. 

Township  Organization.  —  The  organization  of  the  town- 
ship outside  of  New  England  varies  with  its  development. 
Where  it  is  most  vigorous  there  is  the  town-meeting,  exercis- 
ing powers  strictly  defined  and  circumscribed  by  statute  and 
somewhat  less  extensive  than  the  powers  of  the  town-meeting  in 

1  See  p.  10  of  Local  Government  in  Illinois,  by  Dr.  Albert  Shaw  (Jorns 
Hopkins  Studies  in  Historical  and  Political  Science,  First  Series). 


344  THE  GOVERNMENT   OF   THE   UNITED   STATES. 

New  England,  but  still  covering  a  multitude  of  local  interests 
and  representing  a  very  real  control.  Where  it  is  less  developed 
there  is  no  town-meeting,  but  instead  only  the  processes  of  popu- 
lar election  to  local  office.  In  all  cases  the  '  selectmen  '  have  dis- 
appeared :  at  least  we  find  no  officers  bearing  their  name,  and  no 
officers  possessing  exactly  their  functions.  Where  the  township 
is  most  completely  organized  we  find  one  or  more  <  supervisors  ' 
standing  at  the  front  of  township  administration,  who  are  clothed 
with  the  duties  of  overseers  of  the  poor,  exercise  oftentimes  a 
certain  control  over  the  finances  of  the  township,  and  are  in 
general  function  the  presiding  and  directing  authorities  of  the 
administration. 

Where  there  are  several  supervisors  or  trustees  in  the  town- 
ship, it  is  common  to  associate  them  together  as  a  Board,  and 
under  such  an  arrangement  they  very  closely  resemble  the  New 
England  board  of  selectmen  in  their  administrative  functions. 
Township  boards  also  exist  under  the  laws  of  some  states  in 
which  there  is  but  a  single  supervisor  for  each  township,  being 
composed,  usually,  besides  the  supervisor,  of  such  officers  as  the 
town  clerk  and  the  Justices  of  the  Peace.  In  Michigan  such  a 
board  has  rather  extensive  supervisory  powers  ;  in  Illinois  it  is 
a  committee  of  audit  simply. 

The  number  of  township  officers  varies  with  the  degree  of 
development  to  which  the  township  system  has  attained.  In 
Ohio,  where  the  system  is  still  more  or  less  in  germ,  there  are, 
besides  the  three  trustees,  no  township  officers  save  a  clerk  and  a 
treasurer. 

In  Michigan,  even,  where  the  township  system  is  fully  ac- 
cepted, there  is  neither  an  assessor  nor  a  collector  of  taxes,  the 
supervisor  acting  as  assessor  and  the  treasurer  as  collector.  In 
Illinois,  on  the  other  hand,  there  is  always  a  full  corps  of  officers : 
supervisor,  collector,  assessor,  clerk,  commissioners  of  highways, 
justices  of  the  peace,  constables,  etc., — and  for  the  school  town- 
ship a  body  of  school  trustees. 

The  term  of  all  officers  except  justices  of  the  peace,  road  and 
school  commissioners,  and  constables  is  generally  but  a  single 
year,  as  in  New  England ;  the  terms  of  the  other  officers  named 


THE    GOVERNMENT    OF    THE    UNITED    STATES.  :\\~> 

are  often  three  or  four  years.  \Yhere  there  is  a  town-meeting  the 
officers  are  elected  by  it ;  where  there  is  no  town-meeting  they 
are  chosen  at  the  polls. 

The  Township  in  the  Middle  Atlantic  States.  —  It  is  re- 
versing the  historical  order  to  speak  of  the  townships  of  the 
middle  Atlantic  states  after  discussing  the  townships  of  the 
newer  West;  but  it  is  not  reversing  the  order  of  convenient  expo- 
sition. The  processes  of  formation  are  plainly  visible  in  the 
\\Vst ;  in  the  East  they  are  more  complex  and  obscure,  being  the 
formations  of  history  rather  than  of  legislation. 

The  New  York  township  is  like  the  townships  of  Michi- 
gan and  Illinois  in  its  structure  and  functions ;  but  like  because 
it  is  an  original,  not  because  it  is  a  copy.  Over  it  presides  a 
single  supervisor  who  is  the  treasurer  and  general  financial  officer 
of  the  area.  It  has  its  clerk,  its  assessor,  its  collector,  its  commis- 
sioners of  highways,  its  constables,  its  justices  of  the  peace.  It 
has  also  special  overseers  of  the  poor.  An  annual  town-meeting, 
under  the  presidency  of  the  justices  of  the  peace,  or  of  the  town 
clerk,  elects  all  officers,  passes  sundry  by-laws,  votes  taxes  for 
schools  and  poor  relief,  and  constitutes  the  general  governing 
authority. 

In  counties  containing  300,000  or  more  inhabitants  there  is  a  provision 
for  the  election  of  township  officers  at  the  polls. 

The  Pennsylvania  Township.  —  The  New  York  township 
system  suggested  the  system  of  the  states  about  the  lakes,  and 
stands  nearest  in  the  order  of  development  to  the  township 
of  New  England.  The  township  of  Pennsylvania,  on  the  other 
hand,  suggests  the  township  system  of  the  next  lower  belt  of 
middle  Western  states.  In  it  there  is  no  town-meeting,  but 
only  an  executive  machinery.  A  board  of  two  or  three  super- 
visors, holding  for  a  term  of  three  years,  presides  over  the  town- 
ship, and  has  as  its  most  prominent  function  the  care  of  high- 
ways. For  the  rest,  there  are  the  usual  officers,  with  the  some- 
what uncommon  addition  of  the  auditors.  Where  the  township 
is  charged  with  the  care  of  the  poor,  two  special  overseers  are 
elected. 


346     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

Origins  of  Local  Government  in  the  Middle   States.— 

Local  government  in  New  York,  Pennsylvania,  Delaware,  and 
most  of  New  Jersey  runs  back,  as  to  a  common  source,  to  the 
system  established  in  colonial  times  by  the  Duke  of  York  as 
proprietor.  Under  that  system  the  township  was  the  principal 
organ  of  local  government.  Its  officers  were  certain  constables 
and  overseers ;  and  above  the  township  was  only  an  artificial 
'  Riding/  presided  over  by  a  sheriff.  Certain  General  Courts 
levied  highway  and  poor  rates,  appointed  overseers  of  highways, 
etc.  After  the  period  of  the  Duke's  proprietorship,  the  develop- 
ment of  local  government  in  the  several  parts  of  his  domain 
exhibited  a  considerable  variety.  The  township  retained  its  im- 
portance in  New  York,  but  further  south,  particularly  in  Penn- 
sylvania, the  county  gained  the  superior  place. 

The  Township  in  the  South.  — Wherever,  in  the  South,  the 
principle  of  local  taxation  for  local  schools  has  been  fully  rec- 
ognized, there  the  township  has  begun  to  show  itself,  at  least  in 
bud.  Virginia,  the  oldest  of  the  southern  states,  and  in  most 
respects  the  type  of  all  the  rest  in  institutional  development,  for 
six  years  (1868-1874)  tried  the  township  system  in  its  full  form. 
But  the  experiment  proved  unsatisfactory.  The  system,  instead 
of  being  gradually  introduced  and  allowed  to  take  a  normal  way  of 
growth,  was  adopted  whole,  proved  too  artificial,  and  was  very 
soon  abolished  by  constitutional  amendment.  North  Carolina 
and  West  Virginia  have  adopted  a  township  system  of  a  very 
much  more  rudimentary  sort,  and  with  better  results  in  practical 
administration. 

The  County.  —  The  division  of  power  between  township 
and  county  can  be  most  intelligibly  discussed  in  connection  with 
the  following  outline  of  county  organization.  The  natural  history 
of  the  county  is  best  studied  in  the  South,  where,  despite  the  par- 
tial adoption  of  township  organization  here  and  there,  the  county 
remains  the  chief  and  almost  the  only  organ  of  local  order  and 
government.  We  have  seen  (pages  271-273)  how  natural  a  basis 
of  government  it  was  for  a  widespread  agricultural  population. 
The  county  was  imported  into  the  West  by  Southern  settlers,  and 
also  found  there  at  first  its  natural  reason  for  existence  in  a  simi- 
larly diffused  population.  New  England  immigration  and  new 


THE    GOVERNMENT   OF   THE    UNITED    STATES.  347 

conditions  of  industrial  and  social  combination  have  created  the 
township  within  the  county  in  the  West,  as  similarly  altered  con- 
ditions have  begun  to  create  it  in  the  South  also. 

In  all  cases,  it  would  seem,  the  county  was  originated 
primarily  for  judicial  purposes,  as  an  area  in  and  for  which  courts 
were  to  be  held,  though  in  such  confederate  colonies  as  Connecticut 
it  was  also  in  part  the  outgrowth  of  the  union  of  different  groups 
of  once  independent  towns.  In  the  South  the  county  became  also 
the  single  area  for  the  administrative  organization  of  local  govern- 
ment, being  given  the  functions  elsewhere  divided  between  the 
county  and  smaller  areas  like  the  township.  In  New  England 
certain  general  functions  of  a  limited  character  have  been  con- 
ferred upon  it  by  subtraction  from  the  townships.  In  the  North- 
west, county  and  township  have  been  created  almost  simultaneously 
and  side  by  side,  and  are  carefully  integrated. 

The  American  county  was  of  course  in  the  first  instance  a  frontier 
copy  of  the  English  shire  ;  but  its  growth  affords  no  analogy  to  the  growth 
of  its  English  prototype.  The  English  shire  in  a  great  many  instances 
traces  its  history  back  to  the  time  when  it  was  a  separate  Saxon  kingdom, 
and  may  be  said  to  have  as  natural  boundaries  as  France ;  American 
counties,  on  the  other  hand,  have  all  been  deliberately  *  laid  out,1  as  judi- 
cial and  administrative  subdivisions,  and  have  no  such  independent  his- 
torical standing. 

The  Southern  county,  which  undertakes  all  of  local  ad- 
ministration, has  a  complete  set  of  officers.  At  its  head  is  a 
small  board  of  county  commissioners.  Acting  under  the  gen- 
eral superintendence  of  the  commissioners,  there  are  generally 
a  county  treasurer,  auditor,  superintendent  of  roads,  superin- 
tendent of  education,  and  superintendent  of  the  poor.  On  its 
judicial  side,  the  county  has  its  sheriff,  its  clerk,  its  ordinary 
or  surrogate,  its  coroner,  and  its  state-attorney,  the  latter 
generally  acting  for  a  judicial  district  inclusive  of  several 
counties.  The  functions  of  the  county  embrace  the  oversight  of 
education,  the  maintenance  of  jails  and  poorhouses,  the  construc- 
tion and  repair  of  highways,  and  all  local  matters.  County 
officers  are  in  almost  all  instances  elected  by  popular  vote.  Un- 
der the  Southern  county  system  the  sheriff  is  commonly  also 
tax-collector. 


348  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

Where  the  township  exists  there  is  great  variety  of 
county  organization,  almost  the  only  point  of  common  likeness 
being  the  organization  of  justice.  The  county  always  has  its 
sheriff,  and  generally  its  separate  courts,  with  the  usual  coroner 
and  clerk.  The  variety  shows  itself  in  the  field  of  administra- 
tive structure.  Sometimes,  as  in  New  York,  Michigan,  and  Illi- 
nois, the  county  administrative  authority  is  a  board  composed  of 
the  supervisors  of  all  the  townships;  sometimes,  as  in  Pennsyl- 
vania and  Minnesota,  the  county  authority  is  a  board  of  three 
commissioners.  In  Wisconsin  the  county  board  consists  of  mem- 
bers each  of  whom  is  chosen  by  two  or  more  townships.  Where 
the  county  is  given  least  power,  as  in  New  England,  its  adminis- 
trative functions  hardly  extend  beyond  the  maintenance  of  county 
buildings  such  as  the  jail  and  courthouse,  the  granting  of  certain 
licenses,  and  the  partial  supervision  of  the  highway  system.  In 
New  York  and  the  Northwest  the  county  authorities  often  under 
take  the  relief  of  the  poor,  sometimes  exercise  an  extensive  con- 
trol over  the  debt-contracting  privileges  of  the  smaller  areas,  often 
audit  the  accounts  of  local  officers,  and  supervise  taxation  for  pur- 
poses of  equalization. 

Where  townships  exist,  then,  the  division  of  functions  may  be 
said  to  be  as  follows :  the  township  is  the  area  for  the  administration  of 
schools,  for  the  relief  of  the  poor  (unless  by  special  popular  vote  this  func- 
tion be  given  to  the  county),  police,  the  construction  and  maintenance  of 
highways,  and  sanitation  ;  while  the  county  is  the  area  for  the  administra- 
tion of  justice,  for  the  maintenance  of  jails,  courthouses,  and  sometimes 
poorhouses,  for  tax  equalization,  and  often  for  the  exercise  of  certain 
other  general  supervisory  powers. 

Villages,  Boroughs,  Cities.  —  Counties  and  townships  are 
areas  of  rural  organization  only.  With  the  compacting  of  popu- 
lation in  great  towns  and  cities  other  and  more  elaborate  means 
of  organization  became  necessary,  and  a  great  body  of  consti- 
tutional and  statutory  law  has  grown  up  in  the  states  concern- 
ing the  incorporation  of  urban  areas.  There  is  no  complete  and 
general  municipal  corporations  act  in  any  of  our  states  such  as 
that  under  which,  in  England,  cities  of  all  sizes  may  acquire  the 
privileges  and  adopt  the  organization  of  full  borough  government 
(page  240)  :  the  largest  towns  are  left  to  depend  for  their  incor- 


THE   GOVEKNMENT   OF   THE    UNITED   STATICS.  34i> 

poration  upon  special  acts  of  legislation.  The  large  cities  of  the 
country  consequently  exhibit  a  great  variety  of  political  structure, 
and  even  cities  in  the  same  state  often  differ  widely  in  many 
material  points  of  organization  and  function. 

The  electors  or  freeholders  of  less  populous  urban  dis- 
tricts are  in  most  of  the  states  empowered  to  obtain  a  simple  sort 
of  urban  organization  and  considerable  urban  powers,  by  certain 
uniform  routine  processes,  from  the  courts  of  law;  villages  (as 
they  are  called  in  New  York),  boroughs  (as  they  are  styled  in 
Pennsylvania),  towns  (as  they  are  sometimes  designated  in  the 
South),1  cities  of  the  lesser  grades  (in  states  where  towns  are  classi- 
fied according  to  population),  may  usually  get  from  the  courts  as 
of  course,  upon  proof  of  the  necessary  population  and  of  the  con- 
sent of  the  freeholders  or  electors,  the  privilege  of  erecting  them- 
selves into  municipal  corporations  under  general  acts  passed  for 
the  purpose ;  very  much  as  private  joint-stock  companies  may  get 
leave  to  incorporate  upon  showing  to  the  court  evidence  of  the 
possession  of  the  necessary  membership,  stock,  or  paid-up  capital. 

The  town  or  borough  is,  however,  a  public,  not  a  private,  corpo- 
ration, receiving  by  delegation  certain  powers  of  government ;  and  many 
states  have  left  with  their  legislatures  the  power  to  create  all  public  cor- 
porations by  special  act.  The  incorporation  of  towns  is  not,  therefore, 
universally  governed  by  general  statute. 

The  Authorities  of  urban  districts  thus  erected  into 
separate  corporations  succeed,  generally,  to  all  the  powers  of 
township  officers  within  their  area  and  constitute  a  local  body 
apart ;  but  usually  the  area  thus  incorporated  does  not  cease  to 
be  a  part  of  the  county  in  which  it  lies.  It  continues  to  pay 
county  taxes  and  its  electors  continue  to  take  their  part  in  the 
choice  of  county  officials.  In  some  cases,  however,  cities  have 
been  definitely  separated  from  the  counties  in  which  they  lie. 
This  has  been  the  virtually  uniform  policy  of  Virginia.  In  other 
cases  cities  have  by  growth  absorbed  the  counties  in  which  they 
were  situated,  as  has  happened,  for  example,  by  the  expansion  of 
New  York,  Philadelphia,  New  Orleans,  and  San  Francisco.  Balti- 
more and  St.  Louis  have  been  made  independent  of  county  gov- 

1  The  name  town  when  used  in  New  England  always  means,  not  an  urban 
district,  but  a  towns/tip. 


350  THE    GOVERNMENT    OF   THE   UNITED    STATES. 

eminent  and  county  obligations  by  special  legal  arrangement. 
The  organization  of  incorporated  towns  is  unlike  that  of  either 
county  or  township  principally  in  this,  that  they  have  at  the  front 
of  their  government  a  representative  council  which  within  its 
sphere  is  a  law-making  authority. 

A  common  model  of  organization  for  the  smaller  urban  areas 
is :  a  mayor,  president,  or  chief  burgess  ;  a  small  town  council  given  ex- 
tensive power  of  making  by-laws,  considerable  power  of  taxation  for  local 
improvements  as  well  as  for  local  administration,  and  other  powers  of 
local  direction  which  quite  sharply  differentiate  it  from  the  merely  execu- 
tive boards  often  found  in  the  townships  and  always  found  in  the  coun- 
ties ;  a  treasurer  ;  a  clerk ;  a  collector ;  a  street  commissioner ;  sometimes 
overseers  of  the  poor;  and  generally  such  other  minor  officers  as  the 
council  sees  fit  to  appoint. 

Organization  of  Government  in  Cities.  —  The  difference 
between  the  organization  of  these  smaller  urban  areas  and  the 
organization  of  great  cities  is  a  difference  of  complexity  not  only 
but  often  also  a  difference  of  kind.  Cities,  we  have  seen  (page 
324),  are  often  given  a  separate  judicial  organization,  being 
made  in  effect  separate  judicial  circuits  or  counties,  with  their 
own  courts,  sheriffs,  coroners,  and  state-attorneys  ;  and  are  some- 
times also  made  quite  independent  of  the  counties  in  which 
they  lie  (page  349).  They  are  given  also  larger  councils,  with 
larger  powers ;  a  larger  corps  of  officers ;  and  greater  energy  of 
self-direction  than  other  local  areas  possess. 

The  Council  of  a  great  city  usually  consists  of  two  sections  or 
'houses,'  —  a  board  of  aldermen  and  a  board  of  common  councilmen,  dif- 
fering very  much  as  the  two  houses  of  a  state  legislature  differ,  in  the 
number  and  size  of  the  districts  which  their  members  represent.  In  most 
of  the  cities  of  New  York  state,  however,  there  is  but  a  single  legislative 
chamber,  called  sometimes  the  Board  of  Aldermen,  sometimes  the  Com- 
mon Council. 

These  boards  always  constitute  the  law-making  (or  rather  ordi- 
wa?ice-making)  and  taxing  power  of  the  city ;  and  always  until  recent 
years  they  have  been  constituted  overseers  of  administration  also,  by 
being  given  the  power  to  control  it  not  only  by  withholding  moneys,  but 
also  through  direct  participation  in  the  power  of  appointment  to  the  minor 
city  offices,  —  all  those,  that  is  to  say,  not  filled  by  popular  election.  The 
chief  officers  of  every  city  have  usually  been  elected,  but  all  others  have, 
as  a  rule,  been  appointed  by  the  mayor  subject  to  confirmation  by  the 


THE   GOVERNMENT    OF    TIIK    I'M TIOI)    STATES.  351 

city  council.  The  tendency  of  all  very  recent  legislation  with  reference 
to  the  constitution  of  city  governments  has  been  to  concentrate  executive 
power,  and  consequently  executive  responsibility,  in  the  hands  of  the 
mayor,  leaving  to  the  council  only  its  ordinance-making  power  and  its 
function  of  financial  control.  Some  of  the  most  recent  charters  have  even 
extended  the  appointing  power  of  the  mayor  so  as  to  include  the  most 
important  executive  offices  of  the  city  administration.  Local  bills  are 
submitted  to  the  mayors  of  the  cities  which  they  affect,  for  their  approval. 
But,  if  they  do  not  approve,  the  repassage  of  the  act  by  a  mere  majority 
in  the  legislature  suffices  to  make  it  law,  notwithstanding. 

Commission  Form  of  Government.  —  The  most  recent  develop- 
ment in  municipal  government  is  the  commission  form,  where  the 
old  form  of  organization,  consisting  of  a  mayor  and  an  elected 
council,  has  been  replaced  by  a  single  elective  commission,  small 
in  number,  which  combines  in  itself  both  executive  and  legis- 
lative functions.  The  commission  form  has  been  widely  adopted 
in  smaller  towns  and  cities,  in  a  few  cities  of  size,  but  not  in 
any  of  the  very  largest  cities.  Its  merit  lies  in  the  concentra- 
tion of  powers  in  the  hands  of  a  few  men  whom  it  is  easier  to 
hold  responsible  than  was  formerly  the  case  when  authority  was 
divided  and  parceled  out  among  many.  In  some  cities  the  plan 
has  been  introduced  of  selecting  a  city  manager,  who  under  the 
control  of  the  commission,  by  whom  he  is  appointed  and  removed, 
is  the  actual  administrative  head  of  the  city  government. 

School  Administration.  —  Wherever  the  public  school 
exists  there  we  find  the  school  district  the  usual  administra- 
tive area  for  educational  purposes.  Where  the  county  system 
prevails  the  county  is  divided  into  school  districts ;  where  the 
township  system  prevails  the  township  is  divided  into  school 
districts.  In  every  case  there  are  district  directors  or  trustees 
who  control  school  administration,  and  usually  control  it  so 
entirely  as  to  prevent  in  great  part  the  existence  of  any 
uniform  system  of  education  for  the  whole  state;  but  where 
the  township  system  prevails  there  is  generally  more  partici- 
pation on  the  part  of  the  people,  gathered  in  district-meeting, 
in  school  administration,  and  generally  a  fuller  power  of  local 
taxation. 

In  New  England  recent  years  have  been  witnessing  the  disap- 
pearance of  the  separate  school  district  in  some  states,  and  its 


352  THE    GOVERNMENT    OP    THE    UNITED    STATES. 

absorption  by  the  township.  Thus  in  Maine,  in  New  Hampshire, 
and  in  Connecticut  school  administration  is  being  transferred 
from  district  to  township  officers,  and  the  township  is  being 
made  the  school  area.  In  Massachusetts  the  school  district 
system  was  entirely  abolished  in  1882,  and  township  school 
administration  substituted.  And  outside  New  England  the  same 
substitution  has  here  and  there  been  made,  —  as,  for  example, 
in  Pennsylvania. 

In  the  Northwest  schools  usually  receive  support  from 
three  distinct  sources :  from  the  land  granted  to  each  town- 
ship by  the  federal  government;  from  a  general  state  tax 
for  education,  whose  proceeds  are  distributed  among  the  town- 
ships, to  be  further  distributed  by  the  township  authorities 
among  the  districts ;  and  from  district  taxes  levied  by  the 
district  directors.  In  New  England  there  is  generally  state 
and  township  taxation  .for  the  support  of  the  schools.  In  the 
South,  under  the  county  system,  there  is  state  taxation  only, 
for  the  most  part,  save  in  certain  exceptional  localities,  and 
in  the  greater  towns.  In  many  cases  in  the  Northwest  the 
school  district  is  coincident  in  area  with  the  civil  township, 
though  distinct  and  separate  in  organization. 

Nowhere  is  there  sufficient  centralization  of  control.  State 
superintendents  or  other  central  educational  authorities  are 
without  real  administrative  powers  (compare  page  335) ;  county 
superintendents  seldom  have  much  authority ;  township  trus- 
tees or  committees,  as  a  rule,  have  little  more  than  a  gen- 
eral supervision  and  power  of  advice;  usually  the  directors 
of  the  smallest  area  have  the  greater  part  of  the  total  of 
administrative  authority,  applying  their  quota  of  even  the  state 
taxes  according  to  their  own  discretion.  The  result  is,  variety 
in  the  qualifications  of  teachers,  variety  in  the  method  of 
their  choice,  variety  in  courses  of  study,  variety  in  general 
efficiency. 

Taxation.  —  The  most  striking  feature  regarding  local 
taxation  in  the  United  States  is  the  strict  limitations  put  upon 
it  by  constitution  or  statute.  Commonly  no  local  authorities 
can  tax  beyond  a  certain  fixed  percentage  of  the  appraised 
value  of  the  property  of  their  district.  Under  the  county 


THK    GnVKKNMKNT    OF    THE    UNITED    STATES.  353 

system,  requisition  is  made  upon  the  officers  of  the  counties 
for  the  taxes  voted  by  the  legislature  for  state  purposes,  and 
the  county  boards  raise  them,  together  with  the  county  taxes, 
upon  the  basis  of  the  county  assessment.  Where  the  township 
exists,  the  process  goes  one  step  further :  requistion  is  made 
upon  the  townships  for  both  the  state  and  county  taxes,  and 
the  townships  raise  these,  together  with  their  own  taxes,  upon 
the  basis  of  the  assessment  made  by  their  own  assessors. 

An  effort  is  made  in  most  of  the  states,  however,  to  equal- 
ize assessments.  Some  county  authority  acts  as  a  board  of 
equalization  with  reference  to  the  assessments  returned  by  the 
assessors  of  the  several  townships,  and  above  the  equaliza- 
tion boards  of  the  counties  there  is  generally  a  state  board  of 
equalization,  whose  duty  it  is  to  harmonize  and  equalize,  upon 
appeal,  taxation  in  the  several  counties.  Appeals  always  lie 
from  the  local  assessors  to  these  boards  of  equalization.  The 
system  is,  however,  only  partially  successful.  It  has  proved 
practically  impossible,  under  the  present  system  of  localized 
authority,  to  avoid  great  varieties  and  inequalities  of  assessment : 
local  officials  try  to  cut  down  the  shares  of  their  districts  in 
the  general  taxes  as  much  as  possible. 

General  Remarks  on  Local  Government.  —  Several  features 
observable  in  our  systems  of  local  government  taken  as  a  whole 
are  worthy  of  remark.  (1)  In  the  first  place,  outside  of  the 
towns  and  cities,  the  separately  incorporated  urban  districts, 
there  is  a  marked  absence  of  representative,  law-making  bodies. 
Almost  everywhere  local  officers  and  boards  have  merely  execu- 
tive powers  and  move  within  narrow  limits  set  by  elaborate 
statute  law. 

(2)  In  the  second   place,  where   there   are   local   law-making 
bodies,  they  act  under  strict  constitutional  law :  under  charters, 
that  is,  possessing  thus  a  strong  resemblance,  of  kind,  to  state 
legislatures  themselves. 

(3)  In  the  third  place,  central  control  of  local  authorities  exists 
only  in  the  enforcement,  in  the  regular  law  courts,  of  charters  and 
general  laws :  there  is  nowhere  any  central  Local  Government 
Board   with  discretionary  powers   of   restriction   or   permission 
(page  246). 


354     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

(4)  In  the  fourth  place,  relatively  to  the  central  organs  of  the 
state,  local  government  is,  administratively,  the  most  vital  part 
of  our  system :  as  compared  either  with  the  federal  government 
or  with  local  authorities,  the  central  governments  of  the  states 
lack  vitality  not  only,  but  do  not  seem  to  be  holding  their  own  in 
point  of  importance.  They  count  for  much  in  legislation,  but,  so 
far,  for  very  little  in  administration. 

THE  FEDERAL  GOVERNMENT. 

The  Constitution  of  the  United  States  does  not  contain 
all  the  rules  upon  which  the  organization  of  the  federal  govern- 
ment rests.  It  says  that  there  shall  be  a  Congress  which  shall 
exercise  the  law-making  power  granted  to  the  general  govern- 
ment ;  a  President  who  shall  be  charged  with  the  execution  of 
the  laws  passed  by  Congress ;  and  a  Supreme  Court  which  shall 
be  the  highest  court  of  the  land  for  the  determination  of  what  is 
lawful  to  be  done,  either  by  individuals,  by  the  state  governments, 
or  by  the  federal  authorities,  under  the  Constitution  and  laws. 
It  prescribes  also  in  part  the  organization  of  Congress.  But  it 
does  not  command  how  Congress  shall  do  its  work  of  legislation, 
how  the  President  shall  be  enabled  to  perform  his  great  function, 
or  by  what  machinery  of  officers  and  subordinate  courts  the  Su- 
preme Court  shall  be  assisted  in  the  exercise  of  its  powers.  It 
leaves  all  detail  of  operation  to  be  arranged  by  statute :  and 
statute  accordingly  plays  an  all-important  part  in  the  organiza- 
tion of  the  government. 

The  Constitution  furnishes  only  the  great  foundations  of  the 
system.  Those  foundations  rest  upon  the  same  firm  ground  of 
popular  assent  that  supports  the  several  constitutions  of  the 
states.  Framed  by  a  federal  convention  and  adopted  by  repre- 
sentative conventions  in  the  states,  it  stands  altogether  apart 
from  ordinary  law  both  in  character  and  sanction. 

Amendment  of  the  Constitution.  —  The  Constitution  can- 
not be  amended  without  the  consent  of  two-thirds  of  Congress 
and  three-fourths  of  the  states.  Amendments  may  be  proposed 
in  one  of  two  ways  :  either  (a)  two-thirds  of  the  members  of  each 
house  of  Congress  may  agree  that  certain  amendments  are  neces- 


THE   GOVERNMENT   OF    THE   UNITED   STATES.  355 

sary;  or  (b)  the  legislatures  of  two-thirds  of  the  states  may 
petition  Congress  to  have  a  general  convention  called  for  the  con- 
sideration of  amendments,  and  such  a  convention,  being  called, 
may  propose  changes.  In  both  cases  the  mode  of  adoption  is  the 
same.  Every  change  proposed  must  be  submitted  to  the  states, 
to  be  voted  upon  either  by  their  legislatures  or  by  state  conven- 
tions called  for  the  purpose,  as  Congress  may  determine.  Any 
amendment  which  is  agreed  to  by  three-fourths  of  the  states 
becomes  a  part  of  the  Constitution. 

The  seventeen  amendments  so  far  made  to  the  Constitution 
were  all  proposed  by  Congress.  No  general  constitutional  con- 
vention has  been  called  since  the  adjournment  of  the  great  body 
by  which  the  Constitution  was  framed  in  1787. 

None  of  the  written  constitutions  of  Europe  is  so  difficult  of 
alteration  as  our  own.  In  Germany  a  provision  changing  the 
imperial  constitution  passes  just  as  an  ordinary  law  would  pass, 
the  only  limitation  upon  its  passage  being  that  fourteen  nega- 
tive votes  in  the  Bundesrat  will  defeat  it  (14  out  of  58).  In 
France  (pages  154,  155)  constitutional  amendments  pass  as  ordi- 
nary laws  do,  except  that  they  must  be  adopted  by  the  two 
houses  of  the  legislature  acting,  not  separately  in  Paris,  but 
jointly  at  Versailles,  as  a  National  Assembly.  In  Switzerland 
such  amendments  must  pass  both  houses  of  the  federal  legis- 
lature and  must  also  be  approved,  in  a  popular  vote,  by  a  major- 
ity of  the  voters,  and  by  a  majority  of  the  Cantons.  In  England 
the  distinction  between  constitutional  law  and  statute  law  can 
hardly  be  said  to  exist. 

The  Federal  Territory.  —  The  territory  of  the  United 
States  is  of  three  different  sorts  :  there  is  (a)  the  District  of  Co- 
lumbia, over  which  the  nation  exercises  exclusive  jurisdiction  as 
the  seat  of  its  government,  and  the  arsenals  and  dock-yards, 
which  it  has  acquired  by  purchase,  and  over  which  the  states 
have  given  it  jurisdiction  for  military  purposes  ;  and  (b)  the 
great  national  property,  the  territories,  which  the  federal  author- 
ities hold  in  trust  for  the  nation  as  a  seed-bed  for  the  develop- 
ment of  new  states,  and  (c)  the  dependencies. 

The  District  of  Columbia.  —  It  would  have  been  incon- 
venient for  the  federal  government  to  have  no  territory  of  its 


356  THE   GOVERNMENT    OF    THE    UNITED    STATES. 

own  on  which  to  build  its  public  offices  and  legislative  halls,  and 
where  it  could  be  independent  of  local  or  other  state  regulations. 
The  Constitution  itself  therefore  provided  that  Congress  should 
have  exclusive  authority  within  any  district  not  more  than  ten 
miles  square  which  any  state  might  grant  to  the  federal  govern- 
ment for  its  own  uses.  Acting  upon  this  hint,  Maryland  and 
Virginia  promptly  granted  the  necessary  territorial  jurisdiction, 
it  having  been  decided  to  establish  the  seat  of  government  upon 
the  Potomac.  A  part  of  the  home-land  of  the  federal  govern- 
ment, thus  ceded,  was  laid  out  under  the  name  of  the  District  of 
Columbia  :  there  the  public,  buildings  were  erected,  and  there, 
after  the  removal  of  the  government  offices  thither  in  1800,  the 
city  of  Washington  grew  up. 

The  first  Congress  of  the  United  States  met  in  New  York  City ;  there 
the  first  President  was  inaugurated,  and  the  organization  of  the  new 
government  effected.  In  1790  it  was  determined  that  the  federal  offi- 
cers should  live  and  Congress  meet  in  Philadelphia  (as  the  Continental 
Congress  had  generally  done)  for  ten  years  ;  after  that,  in  the  district 
specially  set  apart  for  the  use  of  the  federal  government. 

The  creation  of  this  federal  home-plot  is  a  feature  peculiar  to  our 
own  federal  arrangements.  Berlin  is  the  capital  of  Prussia,  not  the 
exclusive  seat,  or  in  any  sense  the  property,  of  the  imperial  govern- 
ment. Berne,  too,  is  cantonal,  not  federal,  ground.  Our  government 
would  have  been  in  the  same  case  as  those  of  Germany  and  Switzer- 
land had  our  federal  authorities  remained  the  guests  of  New  York  or 
Pennsylvania. 

The  several  arsenals,  dock-yards,  forts,  and  light-houses  established 
by  the  federal  government  in  different  parts  of  the  Union  are  built  upon 
land  purchased  by  the  federal  government,  generally  of  individuals.  It 
is  the  practice  for  the  several  states  in  which  such  pieces  of  property  lie 
to  grant  to  the  federal  government  exclusive  jurisdiction  over  them,  — 
usually  with  the  proviso  that  the  jurisdiction  shall  lapse  when  the  prop- 
erty ceases  to  be  used  for  the  federal  purposes  specified. 

The  Territories.  —  As  the  different  parts  of  our  vast 
national  domain  have  been  settled  it  has  been  divided,  under  the 
direction  of  Congress,  into  portions  of  various  sizes,  generally 
about  the  area  of  the  larger  states,  though  sometimes  larger  than 
any  state  save  Texas.  These  portions  have  been  called,  for  want 
of  a  better  name,  Territories,  and  have  been  given  governments 


THE  GOVERNMENT   OF   THE   UNITED   STATES.  357 

constituted  by  federal  statute.  First  they  have  been  given  gov- 
ernors and  judges  appointed  by  the  President;  then,  as  their 
population  has  become  numerous  and  sufficiently  settled  in  its 
ways  of  living,  they  have  been  given  legislatures  chosen  by  their 
own  people  and  clothed  with  the  power  to  make  laws  subject  to 
the  approval  of  Congress ;  finally,  upon  becoming  still  more  de- 
veloped, they  have  been  granted  as  full  law-making  powers  as 
the  states.  The  territorial  stage  of  their  development  passed, 
they  have  one  by  one  been  brought  into  the  Union  as  states. 
The  only  territories  remaining  are  Alaska  and  Hawaii. 

Until  1803  the  only  territory  of  the  United  States  consisted  of  the 
lands  east  of  the  Mississippi  which  had  belonged  to  the  thirteen  original 
states  individually,  and  had  by  them  been  granted  to  the  general  govern- 
ment. In  1803  the  vast  tract  known  as  Louisiana  was  bought ;  in  1848, 
by  conquest,  and  in  1852,  by  negotiation,  the  Pacific  coast  lands  were 
acquired  from  Mexico  ;  in  1846  the  right  of  the  United  States  to  a  portion 
of  the  Oregon  country  was  finally  established,  by  treaty. 

The  Dependencies.  —  With  the  acquisition  of  Porto  Rico 
and  the  Philippines  as  a  result  of  the  war  with  Spain,  the  United 
States  acquired  non-contiguous  lands,  already  inhabited  by 
peoples  differing  from  ourselves  in  language,  customs  and  insti- 
tutions. Unlike  the  territory  previously  acquired,  —  with  the 
exception  of  Alaska  and  Hawaii,  —  the  insular  possessions  are 
not  adapted  for  the  progressive  development  from  territories 
to  states.  They  are  dependencies,  and  will  remain  as  such  until 
they  reach  the  stage  when  they  may  become  independent  or 
self-governing. 

The  post-offices,  federal  court  chambers,  custom-houses,  -and  other 
like  buildings  erected  and  owned  by  the  general  government  in  various 
parts  of  the  country,  are  held  by  the  government  upon  the  ordinary 
principles  of  ownership,  just  as  they  might  be  held  by  a  private  corpora- 
tion. Their  sites  are  not  separate  federal  territory. 

Congress.  —  As  in  the  states,  so  in  the  federal  govern- 
ment, the  law-making  power  is  vested  in  a  double  legislature,  a 
Congress  consisting  of  a  Senate  and  a  House  of  Representatives. 
Unlike  the  two  houses  of  a  state  legislature,  however,  the  two 


358  THE   GOVERNMENT    OF    THE   UNITED    STATES. 

houses  of  Congress  have  distinct  characters :  the  Senate  differs 
from  the  House  not  only  in  the  number  of  its  members,  but  also 
in  the  principle  of  its  composition.  It  represents  the  federal 
principle  upon  which  the  government  rests,  for  its  members  rep- 
resent the  states.  The  House  of  Representatives,  on  the  other 
hand,  represents  the  national  principle,  upon  which  also  the  gov- 
ernment has  now  been  finally  established,  without  threat  of 
change.  Its  members  represent  the  people. 

The  Senate.  —  The  Senate  consists  of  two  representatives 
from  each  of  the  states  of  the  Union.  It  has,  therefore,  the  states 
being  forty-eight  in  number,  ninety-six  members.  Each  senator 
is  elected,  for  a  term  of  six  years,  by  the  people  of  the  state 
which  he  represents;  and  a  state  is  legally  free  to  choose 
any  one  as  senator  who  has  been  a  citizen  of  the  United  States 
nine  years,  who  has  reached  the  age  of  thirty,  and  who  is  at  the 
time  of  the  election  a  resident  of  the  state  which  he  is  choeen 
to  represent. 

The  Constitution  directed  that,  immediately  after  coming  to- 
gether for  its  first  session,  the  Senate  should  divide  its  members, 
by  lot,  as  nearly  as  it  could  into  three  equal  groups ;  that  the 
members  assigned  to  one  of  these  groups  should  vacate  their  seats 
after  the  expiration  of  two  years,  the  members  assigned  to  an- 
other after  the  expiration  of  four  years,  and  the  members  of  the 
third  after  the  expiration  of  six  years ;  after  which  arrangement 
had  been  accomplished,  the  term  of  every  senator  was  to  be  six 
years  as  provided.  It  was  thus  brought  about  that  one-third  of 
the  membership  of  the  Senate  is  renewed  by  election  every  two 
years.  The  result  is,  that  the  Senate  has  a  sort  of  continuous 
life,  —  no  one  election  year  affects  the  seats  of  more  than  one- 
third  of  its  members. 

The  Senate  is  the  federal  house  of  Congress.  Its  mem- 
bers represent  the  states  as  the  constituent  members  of  the 
Union.  They  are  not,  however,  in  any  sense  delegates  of  the 
governments  of  the  states.  They  are  not  subject  to  be  instructed 
as  to  their  votes,  as  members  of  the  German  Bundesrat  are,  by 
any  state  authority.  Each  senator  is  entitled  and  expected  to 
vote  according  to  his  own  individual  opinion.  Senators,  there- 
fore, may  be  said  to  represent,  not  the  governments  of  the  states, 


THE   GOVERNMENT    <>I     THE    I'NITED    STATES.  359 

but    the   people   of   the   states   organized    as    corporate   bodies 
politic. 

There  is  no  rule  which  obliges  senators  from  the  same  state  to 
vote  together  after  the  fashion  once  imperative  in  the  Congress 
of  our  own  Confederation,  and  still  imperative  in  the  German 
Bundesrat  (p.  288).  Each  senator  represents  his  state,  not  in 
partnership,  but  singly. 

The  equal  representation  of  the  states  in  the  Senate  more  strictly  con- 
forms to  the  federal  principle  than  does  the  unequal  representation  char- 
acteristic of  the  German  Bundesrat ;  but  the  rule  observed  in  Germany, 
that  the  representatives  of  each  state  must  vote  together,  must,  in  turn,  be 
admitted  to  be  more  strictly  consistent  with  the  idea  of  state  representation 
than  is  the  rule  of  individual  voting  followed  in  our  Senate. 

The  Vice-President  of  the  United  States  is  president  of 
the  Senate.  Unless  the  President  die,  this  is  the  only  function 
of  the  Vice-President.  He  is  not  a  member  of  the  Senate ;  he 
simply  presides  over  its  sessions.  He  has  a  vote  only  when  the 
votes  of  the  senators  are  equally  divided  upon  some  question  and 
his  vote  becomes  necessary  for  a  decision.  If  the  President  die 
or  resign,  or  be  removed  from  office,  or  be  rendered  unable  "  to 
discharge  the  duties  and  powers  "  of  his  office,  the  presidency 
devolves  on  the  Vice-President. 

Organization  of  the  Senate.  —  The  Senate  makes  its 
own  rules  of  procedure,  the  Vice-President  being  of  course  bound 
to  administer  whatever  rule  it  adopts.  Naturally  the  internal 
organization  of  the  body  is  the  matter  with  which  its  rules  prin- 
cipally concern  themselves,  and  the  most  important  feature  of 
that  organization  is  the  division  of  the  members  of  the  Senate 
into  standing  committees ;  into  small  groups,  that  is,  to  each  of 
which  is  entrusted  the  preparation  of  a  certain  part  of  the  Sen- 
ate's business.  The  Senate  itself  would  not  have  time  to  look 
into  the  antecedents  and  particulars,  the  merits  and  bearings, 
of  every  matter  brought  before  it ;  these  committees  are,  there- 
fore, constituted  to  act  in  its  stead  in  the  preliminary  exami- 
nation and  shaping  of  the  measures  to  be  voted  on.  Whenever 
any  proposal  is  made  concerning  any  important  question,  that 
proposal  is  referred  to  the  standing  committee  which  has  been 


360  THE   GOVERNMENT    OF   THE   UNITED    STATES. 

commissioned  to  consider  questions  of  the  class  to  which  the 
proposed  action  belongs.  The  committee  takes  the  proposal 
under  consideration,  in  connection  with  all  other  pending  pro- 
posals relating  to  the  same  subject,  and  reports  to  the  Senate 
what  it  thinks  ought  to  be  done  with  reference  to  it,  —  whether 
it  is  advisable  to  take  any  action  or  not,  and,  if  it  is  advisable  to 
act,  what  action  had  best  be  taken. 

Thus  there  is  a  Committee  on  Finance,  to  which  all  questions 
affecting  the  revenue  are  referred ;  a  Committee  on  Appropriations,  which 
advises  the  Senate  concerning  all  votes  for  the  spending  of  moneys ;  a 
Committee  on  Railroads,  which  considers  all  railroad  questions ;  a  Com- 
mittee on  Foreign  Affairs,  which  prepares  for  consideration  all  questions 
touching  our  relations  with  foreign  governments,  etc. 

Influence  of  the  Standing  Committees.  —  Its  standing 
committees  have  a  very  great  influence  upon  the  action  of  the 
Senate.  The  Senate  is  naturally  always  inclined  to  listen  to 
their  advice,  for  each  committee  necessarily  knows  much  more 
about  the  subjects  assigned  to  it  for  consideration  than  the  rest 
of  the  senators  can  know.  Its  committee  organization  may  be 
said  to  be  of  the  essence  of  the  legislative  action  of  the  Senate : 
for  the  leadership  to  which  a  legislative  body  consigns  itself  is 
of  the  essence  of  its  method  and  must  affect,  not  the  outward 
form  merely,  but  the  whole  character  also  of  its  action.  Under 
every  great  system  of  government  except  our  own,  leadership 
in  legislation  belongs  for  the  most  part  to  the  ministers,  to  the 
Executive,  which  stands  nearest  to  the  business  of  governing; 
it  is  a  central,  and,  as  evidenced  by  its  results,  extremely  impor- 
tant characteristic  of  our  system  that  our  legislatures  lead  them- 
selves, or,  rather,  that  they  suffer  themselves  to  be  led  along  the 
several  lines  of  legislation  by  separate  and  disconnected  groups 
of  their  members. 

The  Senate  and  the  Executive.  —  One  of  the  chief  uses  of  the 
committees  is  to  obtain  information  for  the  Senate  concerning  the  affairs 
of  the  government.  But,  inasmuch  as  the  executive  branch  of  the  gov- 
ernment is  quite  separate  from  Congress,  it  is  often  very  difficult  for  the 
Senate  to  find  out  through  its  committees  all  that  it  wishes  to  know  about 
the  condition  of  affairs  in  the  executive  departments.  The  action  of  the 
two  houses  upon  some  questions  must  of  course  be  greatly  influenced,  and 


THE   GOVERNMENT   OF  THE   UNITED   STATES.  361 

should  be  greatly  influenced,  by  what  they  can  learn  of  administrative 
experience  in  the  departments,  and  the  Senate,  as  well  as  the  House,  has 
the  right  to  ask  what  questions  it  pleases  of  executive  officers,  either 
through  its  committees  or  by  requiring  a  written  report  to  be  made  directly 
to  itself  by  some  head  of  a  department.  Upon  financial  questions,  for  exam- 
ple, the  Senate  or  its  Finance  Committee  must  constantly  wish  to  know 
the  experience  of  the  Treasury.  But  it  is  not  always  easy  to  get  legisla- 
tive questions  fully  and  correctly  answered  ;  for  the  officers  of  the  govern- 
ment are  in  no  way  responsible  to  either  house  for  their  official  conduct. 
They  belong  to  an  entirely  separate  and  independent  branch  of  the  gov- 
ernment :  only  such  high  crimes  and  misdemeanors  as  lay  them  open  to 
impeachment  expose  them  to  the  power  of  the  houses.  The  committees 
are,  therefore,  frequently  prevented  from  doing  their  work  of  inquiry 
well,  and  the  Senate  has  to  act  in  the  dark.  Under  other  systems  of  gov- 
ernment, the  ministers  are  always  present  in  the  legislative  bodies  to  be 
questioned  and  dealt  with,  directly,  face  to  face. 

The  President  Pro  Tempore.  —  It  is  the  practice  of  the  Senate 
to  make  itself  independent  of  all  chances  of  the  Vice-President's  absence 
by  electing  statedly  from  its  own  membership  a  president  pro  tempore,  to 
act  in  case  of  the  absence  or  disability  of  the  Vice-President. 

The  House  of  Representatives.  —  The  House  of  Repre- 
sentatives represents,  not  the  states,  but  the  people  of  the 
United  States.  It  represents  them,  however,  not  in  the  mass, 
but  by  states.  Representation  is  apportioned  among  the  states 
severally  according  to  population,  and  no  electoral  district  crosses 
any  state  boundary. 

Apportionment  of  Representatives.  —  Congress  itself  de- 
cides by  law  how  many  representatives  there  shall  be;  it  then 
divides  the  number  decided  upon  among  the  states  according  to 
population ;  after  which  each  state  is  divided  by  its  own  legis- 
lature into  as  many  districts  as  it  is  to  have  representatives, 
and  the  people  of  each  of  these  districts  are  entitled  to  elect  one 
member  to  the  House.  The  only  limitation  put  by  the  Consti- 
tution itself  upon  the  number  of  representatives  is,  that  there 
shall  never  be  more  than  one  for  every  thirty  thousand  inhabi- 
tants. The  first  House  of  Representatives  had,  by  direction  of 
the  Constitution  itself,  sixty-five  members,  upon  the  proportion 
of  one  to  every  thirty-three  thousand  inhabitants.  The  number 
has,  of  course,  grown,  and  the  proportion  decreased,  with  the 


362  THE   GOVERNMENT   OF   THE   UNITED    STATES. 

growth  of  population.  A  census  is  taken  every  ten  years,  and 
the  rule  is  to  effect  readjustments  and  a  redistribution  of  repre- 
sentation after  every  census. 

In  states  which  send  but  one  representative  (there  are 
now  — 1918 —  five  of  these),  the  representative  is  chosen  by  the 
voters  of  the  whole  state.  In  some  of  the  other  states  also  it 
sometimes  happens  that  one  or  more  representatives  are  chosen 
thus  '  at  large/  pending  a  redistribution  among  districts,  —  or  for 
some  other  reason. 

At  present  there  are  four  hundred  and  thirty-five  members  in  the 
House,  and  the  states  are  given  one  member  for  every  211,877  of  their 
inhabitants.  In  cases  where  a  state  has  many  thousands  more  than  an 
even  number  of  times  that  many  inhabitants,  it  is  given  an  additional 
member  to  represent  the  balance.  Thus,  if  it  have  four  times  211,877 
inhabitants  and  a  very  large  fraction  over,  it  is  given  five  members  instead 
of  four  only.  If  any  state  have  less  than  211,877,  it  is  given  one  member, 
notwithstanding,  being  entitled  to  at  least  one  by  constitutional  provision. 
The  reason  for  allowing  a  state  an  extra  representative  when  there  is  a 
large  fraction  remaining  over  after  a  division  of  its  population  by  the 
standard  number  is  that  the  apportionment  of  representatives  is  made 
according  to  states,  and  not  by  an  even  allotment  among  the  people  of 
the  country  taken  as  a  whole,  and  that  under  such  a  system  a  perfectly 
equal  division  of  representation  is  practically  impossible.  Congress  makes 
the  most  equitable  arrangement  practicable  each  time  it  reapportions  the 
membership  of  the  House  upon  the  basis  of  the  decennial  census  which 
Congress  directs  to  be  taken  for  this  purpose  in  pursuance  of  a  special 
constitutional  command. 

Elections  to  the  House.  —  Any  one  may  be  chosen  a 
representative  who  has  reached  the  age  of  twenty-five  years, 
has  been  a  citizen  of  the  United  States  for  seven  years,  and 
is  at  the  time  of  his  election  an  inhabitant  of  the  state  from 
which  he  is  chosen.  The  term  of  a  representative  is  two  years  : 
and  two  years  is  also  the  term  of  the  whole  House;  for  its 
members  are  not  chosen  a  section  at  a  time,  as  the  senators  are  ; 
the  whole  membership  of  the  House  is  renewed  every  second 
year.  Each  biennial  election  creates  '  a  new  House.' 

Although  the  Senate  has  a  continuous  life,  we  speak  habitually 
of  different  '  Congresses,'  as  if  a  new  Congress,  instead  of  a  new  House 
of  Representatives  merely,  were  chosen  biennially.  Thus  the  Congress  of 


THE   GOVERNMENT   OF   THE   UNITED    STATES.  363 

1917-1919  is  known  as  the  sixty-fifth  Congress,  because  the  House  of  Repre- 
sentatives of  that  period  is  the  sixty-fifth  that  has  been  elected  since  the 
government  was  established. 

Federal  law  does  not  determine  who  shall  vote  for  members 
of  the  House  of  Representatives.  The  Constitution  provides, 
simply,  that  all  those  persons  in  each  state  who  are  qualified 
under  the  constitution  and  laws  of  the  state  to  vote  for  members 
of  the  larger  of  the  two  houses  of  the  state  legislature  may 
vote  also  for  members  of  the  House  of  Representatives  of  the 
United  States.  The  franchise  is  regulated,  therefore,  entirely 
by  state  law. 

In  the  fourteenth  amendment  to  the  Constitution  (passed  1866-1868) 
a  very  great  pressure  is,  by  intention  at  least,  brought  to  bear  upon  the 
states  to  induce  them  to  make  their  franchise  as  wide  as  their  adult  male 
population.  For  that  amendment  provides  that,  should  any  state  deny  to 
any  of  its  m;.le  citizens  who  are  twenty-one  years  of  age  the  privilege  of 
voting  for  members  of  the  more  numerous  branch  of  its  own  legislature 
(and  thus,  by  consequence,  the  privilege  of  voting  for  representatives  in 
Congress),  for  any  reason  except  that  they  have  committed  crime,  its 
representation  in  Congress  shall  be  curtailed  in  the  same  proportion  that 
the  number  of  persons  thus  excluded  from  the  franchise  bears  to  the 
whole  number  of  male  citizens  twenty-one  years  of  age  in  the  state. 
This  provision  has  in  practice,  however,  proved  of  little  value.  It  is 
practically  impossible  for  the  federal  authorities  to  carry  it  satisfactorily 
into  effect. 

Organization  of  the  House.  —  The  House,  like  the 
Senate,  has  its  own  rules,  regulative  of  the  number  and  duties 
of  its  officers  and  of  its  methods  of  doing  business ;  and  these 
rules,  like  those  of  the  Senate,  are  chiefly  concerned  with  the 
creation  and  the  privileges  of  a  great  number  of  standing  com- 
mittees. The  committees  of  the  House  were  until  1910  ap- 
pointed by  the  presiding  officer  of  the  House,  the  'Speaker'1; 

1  The  House  of  Representatives  is  not  given  a  president  by  the  Constitu- 
tion, as  the  Senate  is.  It  elects  its  own  presiding  officer,  whose  name,  of 
*  Speaker,'  is  taken  from  the  usage  of  the  English  House  of  Commons, 
whose  president  was  so  called  because  whenever,  in  the  old  days,  the  Com- 
mons went  into  the  presence  of  the  king  for  the  purpose  of  laying  some 
matter  before  him,  or  of  answering  a  summons  from  him,  their  president 


364     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

and  this  power  of  the  Speaker  to  appoint  the  committees  of  the 
House  made  him  one  of  the  most  powerful  officers  in  the  whole 
government.  For  the  committees  of  the  House  are  even  more 
influential  than  those  of  the  Senate  in  determining  what  shall 
be  done  with  reference  to  matters  referred  to  them.  They  as 
a  matter  of  fact  have  it  in  their  power  to  control  almost  all  the 
acts  of  the  House.  The  Senate,  being  a  comparatively  small 
body,  has  time  to  consider  very  fully  the  reports  of  its  com- 
mittees, and  generally  manages  to  shape  its  own  conclusions. 
But  the  House  is  too  large  to  do  much  debating  :  it  must  be 
guided  by  its  committees  or  it  must  do  nothing.  It  is  this  fact 
which  made  the  Speaker's  power  of  appointment  so  vastly 
important.  He  determined  who  should  be  on  the  committees, 
and  the  committees  determined  what  the  House  should  do.  He 
nominated  those  who  shaped  legislation.  More  than  that,  he 
shaped  the  rules  and  determined  the  course  of  business.  For  he 
was  chairman  of  the  Committee  on  Rules,  which  had  but  four 
other  members,  whom  be  regarded  as  his  '  assistants,'  and  that 
committee  guided  the  House  quite  absolutely  in  the  use  of  its 
time.  The  Speaker  will  not  '  recognize '  (that  is,  will  not  give 
the  floor  to)  any  member  who  seeks  to  upset  the  programme  it 
has  fixed. 

The  extraordinary  power  of  the  Speaker  often  made  his  election 
a  very  exciting  part  of  the  business  of  each  new  House :  for  he 
was  always  selected  with  reference  to  what  he  would  do  in  con- 
stituting the  principal  committees,  and  in  shaping  and  adminis- 
tering the  rules. 

So  great  had  become  the  power  of  the  Speaker,  not  only  to 
control  legislation  but  also  to  discipline  recalcitrant  members, 
and  so  arbitrarily  did  Speaker  Cannon  exercise  his  power,  that  at 
length  opposition  developed  within  his  own  party,  the  l  insurgents,' 
who  finally  in  1910  combined  with  the  Democrats  to  change  the 
Committee  on  Rules.  It  was  enlarged  from  five  to  ten  members, 
six  of  the  majority  and  four  of  the  minority  party,  elected  by 
the  House,  and  the  Speaker  was  deprived  of  his  membership. 

was  their  spokesman  or  Speaker.  This  name  is  used  also  in  the  legislative 
bodies  of  all  the  English  colonies,  —  wherever,  indeed,  English  legislative 
practices  have  been  directly  inherited. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.     365 

In  the  next  session  the  Democratic  party  had  a  majority  in  the 
House  and  it  carried  through  a  complete  change  in  the  method 
of  constituting  committees.  The  House  now  elects  its  own 
committees,  and  in  practice  the  following  method  is  used.  Each 
party  holds  a  caucus  which  elects  a  party  committee  on  com- 
mittees. These  party  committees  select  the  party  members  for 
committees ;  the  names  thus  selected  are  nominated  to  the  House 
by  the  respective  party  committees  and  the  House  elects  the 
members  thus  nominated.  These  changes  have  taken  away 
much  of  the  Speaker's  power  and  have  placed  it  in  the  hands  of 
the  party  leaders,  for  the  party  committees  on  committees  are 
naturally  composed  of  the  party  leaders.  The  autocratic  character 
of  the  Speaker's  power  has  been  replaced  by  a  more  democratic 
control  by  the  party.  Yet  the  influence  of  the  Speaker  is  still  great, 
and  more  than  any  one  individual  he  can  aid  or  hinder  legislation. 

The  House  has  so  many  standing  committees  that  every  repre- 
sentative is  a  member  of  one  or  another  of  them, —  but  many  of 
the  committees  have  little  or  nothing  to  do.  Some  of  them, 
though  still  regularly  appointed,  have  no  duties  assigned  them 
by  the  rules.  One  of  the  most  important  committees  is  that  on 
Appropriations,  which  has  charge  of  the  general  money-spending 
bills  introduced  every  year  to  meet  the  expenses  of  the  govern- 
ment, and  which,  by  virtue  of  its  power  under  the  rules  to  bring 
its  reports  to  the  consideration  of  the  House  at  any  time,  to  the 
thrusting  aside  of  whatever  matter,  virtually  dominates  the 
House  by  controlling  its  use  of  its  time.  Special  appropriation 
bills,  which  propose  to  provide  moneys  for  the  expenses  of 
single  departments,  —  as,  for  example,  the  Navy  Department  or 
the  War  Department,  —  are,  by  a  rule  of  the  House,  taken  out 
of  the  hands  of  the  Committee  on  Appropriations  and  given  to 
the  committees  on  the  special  departments  concerned.  Scarcely 
less  important  than  the  Committee  on  Appropriations,  though 
scarcely  so  busy  as  it,  is  the  Committee  on  Ways  and  Means, 
which  has  charge  of  questions  of  taxation. 

The  House  has  to  depend,  just  as  the  Senate  does,  upon  its 
standing  committees  for  information  concerning  the  affairs  of  the 
government  and  the  policy  of  the  executive  departments,  and  is 
just  as  often  and  as  much  embarrassed  because  of  its  entire  ex- 


366  THE   GOVERNMENT   OF   THE    UNITED    STATES. 

elusion  from  easy,  informal,  and  regular  intercourse  with  the  de- 
partments. They  cannot  advise  the  House  unless  they  are  asked 
for  their  advice ;  and  the  House  cannot  ask  for  their  advice 
except  indirectly  through  its  committees,  or  formally  by  requir- 
ing written  reports. 

Acts  of  Congress.  —  In  order  to  become  a  law  or  Act  of 
Congress  a  bill  must  pass  both  houses  and  receive  the  signature 
of  the  President.  Such  is  the  ordinary  process  of  legislation. 
But  the  President  may  withhold  his  signature,  and  in  that  case 
the  measure  which  he  has  refused  to  sanction  must  receive  the 
votes  of  two-thirds  of  the  members  of  each  house,  given  upon  a 
reconsideration,  before  it  can  go  upon  the  statute  book.  The 
President  is  given  ten  days  for  the  consideration  of  each  measure. 
If  he  take  no  action  upon  it  within  the  ten  days,  or  if  within 
that  period  he  sign  it,  its  provisions  become  law ;  if  within  the 
ten  days  he  inform  Congress  by  special  message  that  he  will 
not  sign  the  bill,  returning  it  to  the  house  in  which  it  originated 
with  a  statement  of  his  reasons  for  not  signing  it,  another 
passage  of  the  measure  by  a  majority  of  two-thirds  in  each 
house  is  required  to  make  it  a  law. 

There  are,  therefore,  three  ways  in  which  a  bill  may  become 
law :  either  (a)  by  receiving  the  approval  of  a  majority  in  each 
house,  and  the  signature  of  the  President,  appended  within  ten 
days  after  its  passage  by  the  houses ;  or  (6)  by  receiving  the  ap- 
proval of  a  majority  in  each  house,  and  not  being  acted  upon  by 
the  President  within  ten  days  after  its  passage;  or  (c)  by  re- 
ceiving the  approval  of  two-thirds  of  each  house  after  having  been 
refused  signature  by  the  President  within  ten  days  after  its  pas- 
sage by  a  majority  in  each  house.  If  Congress  adjourn  before  the 
expiration  of  the  ten  days  allowed  the  President  to  consider  bills 
sent  him,  such  bills  lapse  unless  he  has  signed  them  before  the 
adjournment. 

Neither  house  can  do  any  business  (except  send  for  absent 
members  or  adjourn)  unless  a  majority  of  its  members  are 
present,  —  a  majority  being  in  the  case  of  all  our  legislatures, 
both  state  and  federal,  the  necessary  quorum. 

In  the  practice  of  some  foreign  legislatures  the  quorum  is 
much  less  than  a  majority  of  the  members.  In  the  English  House 


THE   GOVERNMENT    OF    THE   UNITED    STATES.  367 

of  Commons,  for  instance,  it  is  only  forty  members,  although  the 
total  number  of  members  of  the  House  of  Commons  is  seven 
hundred  and  seven. 

When  it  is  said  that  under  certain  circumstances  a  bill  must  be 
passed  by  a  vote  of  two-thirds  in  order  to  become  a  law,  it  is 
understood  to  mean  that  it  must  be  voted  for  by  two-thirds  of  the 
members  present,  not  necessarily  by  that  proportion  of  the  whole 
membership  of  the  body.  In  the  case  of  bills  which  the  Presi- 
dent refuses  to  sign,  however,  the  Constitution  expressly  says 
that  it  cannot  be  made  law  unless  a  second  time  passed  by  two- 
thirds  of  each  house. 

A  bill  may  '  originate '  in  either  house,  unless  it  be  a  bill  relat- 
ing to  the  raising  of  revenue.  In  that  case  it  must  originate  in 
the  House  of  Representatives,  though  the  Senate  may  propose 
what  amendments  it  pleases  to  a  revenue  bill,  as  to  any  other 
which  comes  to  it  from  the  House. 

If  one  of  the  houses  pass  a  bill,  and  the  other  house  amend  it, 
the  changes  so  proposed  must  be  adopted  by  the  house  in  which 
the  bill  originated  before  it  can  be  sent  to  the  President  and  be 
made  a  law.  When  the  two  houses  disagree  about  amendments 
they  appoint  conference  committees ;  that  is  to  say,  each  house 
appoints  a  committee  to  consult  with  a  similar  committee  ap- 
pointed by  the  other  house,  to  see  what  can  be  done  towards  bring- 
ing about  an  agreement  between  the  two  houses  upon  the  points 
in  dispute. 

The  Federal  Judiciary :  its  Jurisdiction.  —  The  Judiciary 
of  the  United  States  consists  of  a  Supreme  Court,  nine  Circuit 
Courts  of  Appeals,  nine  Circuit  Courts,  eighty-three  District  Courts, 
and  a  Court  of  Claims.  Its  organization  and  functions  rest  more 
than  do  those  of  either  of  the  other  branches  of  the  general  gov- 
ernment upon  statute  merely,  instead  of  upon  constitutional  pro- 
vision. The  Constitution  declares  that  "  the  judicial  power  of 
the  United  States  shall  be  vested  in  one  supreme  court,  and  in 
such  inferior  courts  as  the  Congress  may,  from  time  to  time, 
ordain  and  establish,"  and  that  "  the  judges,  both  of  the  supreme 
and  inferior  courts,  shall  hold  their  offices  during  good  behavior, 
and  shall,  at  stated  times,  receive  for  their  services  a  compensa- 
tion which  shall  not  be  diminished  during  their  continuance  in 


368  THE    GOVERNMENT    OF    THE    UNITED    STATES. 

office."  It  provides  also  that  the  judicial  power  of  the  federal 
government  shall  extend  to  all  cases  in  law  or  equity  which  may 
arise  under  the  Constitution,  laws,  or  treaties  of  the  United 
States ;  to  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls ;  to  all  admiralty  and  maritime  cases  ;  to  controver- 
sies in  which  the  United  States  is  a  party,  controversies  between 
two  or  more  states,  between  a  state  and  citizens  of  another  state 
(the  state  being  the  suitor),  between  citizens  of  different  states, 
between  citizens  of  the  same  state  claiming  lands  under  grants 
from  different  states,  and  between  a  state  or  its  citizens  and  for- 
eign states,  citizens,  or  subjects.  And  it  directs  that  in  cases 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  in 
cases  in  which  a  state  is  a  party  the  Supreme  Court  shall  have 
original  jurisdiction ;  while  in  all  other  cases  it  is  to  have  appel- 
late jurisdiction  only,  "  with  such  exceptions,  and  under  such 
regulations,  as  the  Congress  shall  make." 

The  judicial  power  of  the  federal  government  is  thus  made  to 
embrace  two  distinct  classes  of  cases :  (a)  those  in  which  it  is 
manifestly  proper  that  its  authority,  rather  than  the  authority  of 
a  state,  should  control,  because  of  the  nature  of  the  questions  in- 
volved: for  instance,  admiralty  and  maritime  cases,  navigable 
waters  being  within  the  exclusive  jurisdiction  of  the  federal 
authorities ;  and  cases  arising  out  of  the  Constitution,  laws,  or 
treaties  of  the  United  States  or  out  of  conflicting  grants  made  by 
different  states.  (6)  Those  in  which,  because  of  the  nature  of  the 
parties  to  the  suit,  the  state  courts  could  not  properly  be  allowed 
jurisdiction  ;  cases  affecting,  for  instance,  foreign  ambassadors, 
who  are  accredited  to  the  government  of  the  United  States  and 
with  whom  our  only  relations  are  national  relations,  whose  privi- 
leges rest  upon  the  sovereignty  of  the  states  they  represent ;  or 
cases  in  which  the  state  courts  could  not  have  complete  jurisdic- 
tion because  of  the  residence  of  the  parties ;  for  instance,  suits 
arising  between  citizens  of  different  states.  It  is  always  open  to 
the  choice  of  a  citizen  of  one  state  to  sue  a  citizen  of  another  state 
in  the  courts  of  the  latter's  own  domicile,  but  the  courts  of  the 
United  States  are  the  special  forum  provided  for  such  cases. 

Power  of  Congress  over  the  Judiciary,  —  But  these  pro- 
visions of  the  Constitution  leave  Congress  quite  free  to  distribute 


THE    GOVERNMENT    OF    THE    UNITED    STATES.  369 

the  powers  thus  set  forth  among  the  courts  for  whose  organization 
it  is  to  provide,  and  even,  if  it  so  chooses,  to  leave  some  of  them 
entirely  in  abeyance.  In  other  words,  the  Constitution  defines 
the  sphere  which  the  judicial  power  of  the  United  States  may 
fill,  while  Congress  determines  how  much  of  that  sphere  shall 
actually  be  occupied,  by  what  courts  and  in  what  manner,  subject 
to  what  rules  and  limitations. 

With  regard  to  the  organization  of  the  judiciary  Congress 
determines  not  only  what  courts  shall  be  created  irferior  to  the 
Supreme  Court,  but  also  of  what  number  of  judges  the  Supreme 
Court  itself  shall  consist,  what  their  compensation  and  procedure 
shall  be,  and  what  their  specific  duties  in  the  administration  of 
justice.  It  might  also  determine,  should  it  see  fit,  what  qualifica- 
tions should  be  required  of  occupants  of  the  supreme  bench. 

The  Existing  Federal  Courts.  —  In  pursuance  of  these 
powers,  Congress  has  passed  the  Judiciary  Act  of  September, 
1789,  and  the  Acts  amendatory  thereto  upon  which  the  national 
judiciary  system  now  rests.  In  1911  all  previous  legislation  was 
codified  and  the  organization  and  jurisdiction  of  the  lower  courts 
were  greatly  modified.  The  Supreme  Court  consists  of  a  chief 
justice  and  eight  associate  justices ;  it  is  required  to  hold  annual 
sessions  in  the  city  of  Washington  —  sessions  which  begin  on  the 
second  Monday  of  each  October  —  any  six  of  the  justices  consti- 
tuting a  quorum.  Next  below  the  Supreme  Court  are  nine  Circuit 
Courts  of  Appeal.  The  territory  of  the  United  States,  including 
Alaska,  Porto  Kico,  and  Hawaii,  is  divided  into  nine  circuits,  in 
each  of  which  there  is  a  Circuit  Court  of  Appeals,  consisting  of 
two  judges  in  the  fourth  circuit,  three  judges  in  the  first,  third, 
fifth,  sixth,  and  ninth  circuits  and  of  four  judges  in  the  second, 
seventh,  and  eighth  circuits. 

The  chief  justice  and  associate  justices  of  the  Supreme  Court 
are  allotted  among  the  circuits  by  order  of  the  court ;  the  chief 
justice  and  the  associate  justices  assigned  to  each  circuit  are  com- 
petent to  sit  as  judges  of  the  Circuit  Court  of  Appeals  within  their 
respective  circuits  and  when  so  sitting  shall  preside.  In  case  the 
full  court  is  not  made  up,  one  or  more  district  judges  shall  sit  in 
the  court. 

The  Circuit  Courts  of  Appeal  exercise  appellate  jurisdiction  to 


370     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

review  by  appeal  or  writ  of  error  final  decisions  in  the  District 
Courts  which  may  not  be  appealed  direct  to  the  Supreme  Court, 
and  for  the  most  part  the  decisions  of  the  Circuit  Courts  of  Ap- 
peal are  final ;  they  may,  however,  certify  to  the  Supreme  Court 
such  questions  of  law  as  they  may  deem  best. 

The  nine  circuits  are  divided  into  eighty-three  districts,  which, 
like  Congressional  districts,  never  cross  state  lines ;  and  for  each 
of  these  districts  there  has  been  established  a  district  court. 
Some  of  the  less  populous  states  constitute  each  a  single  district ; 
others  are  divided  into  two,  while  still  others  furnish  sufficient 
business  to  warrant  their  being  divided  into  four.  The  District 
courts  are  the  lowest  courts  of  the  federal  series,  and  have  their 
own  separate  judges. 

The  Court  of  Claims  was  established  in  1855,  to  relieve  Con- 
gress of  the  necessity  of  determining  the  validity  of  claims  against 
the  United  States,  for  the  settlement  or  adjudication  of  which  no 
provision  had  been  made.  It  consists  of  a  chief  justice  and  four 
associates,  and  sits  always  in  Washington.  Pension  claims,  war 
claims,  and  claims  already  rejected  were  excluded  from  its  juris- 
diction ;  but  all  other  claims  against  the  United  States,  which  are 
of  such  a  kind  that  they  could  not  be  settled  by  an  ordinary  suit 
at  law,  in  equity,  or  in  admiralty  (if  the  United  States  were  suable 
like  an  individual)  are  referred  to  it.  In  some  instances  it  is 
authorized  to  enter  judgment ;  in  others  it  can  only  find  the  facts  ; 
but  in  either  case  the  claimant  must  wait  for  an  appropriation  by 
Congress  for  the  satisfaction  of  his  claim. 

The  Court  of  Customs  Appeals  is  composed  of  a  presiding  judge 
and  four  associates.  It  has  exclusive  jurisdiction  over  appeals 
from  the  Board  of  General  Appraisers  of  the  Treasury  Department 
as  to  the  classification  of  imported  goods  and  the  rate  of  duty  im- 
posed thereon  under  such  classifications.  The  court  is  always 
open  for  business  and  sessions  may  be  held  in  any  circuit  at  the 
discretion  of  the  Court. 

The  division  of  jurisdiction  between  the  Circuit  Courts  of 
Appeal  and  the  District  courts  is  effected  by  act  of  Congress ; 
and,  inasmuch  as  Congress  has  not  seen  fit  to  vest  in  the  courts 
complete  jurisdiction  over  all  cases  arising  under  the  Constitution, 
laws,  and  treaties  of  the  United  States,  but  has  given  to  each 


THE   GOVERNMENT   OF  .THE    UNITED    STATES.  371 

court  power  in  certain  specified  cases,  and  left  the  rest  in  abey- 
ance, it  would  be  impossible  to  give  in  brief  compass  a  detailed 
account  of  the  jurisdiction  of  the  several  courts.  It  must  suffice 
for  present  purposes  to  say,  that  the  District  courts  are  given 
cognizance  of  all  ordinary  civil  cases  falling  within  the  federal 
jurisdiction  of  all  common  law  suits  brought  by  the  United  States, 
all  torts  under  international  law  or  the  treaties  of  the  United 
States,  suits  against  consuls  or  vice  consuls,  land  condemnations, 
and  all  cases  brought  under  the  civil  rights  laws ;  and  that  they 
have  exclusive  original  jurisdiction  in  postal  law  cases,  prize  cases, 
admiralty  and  maritime  cases,  and  suits  against  the  United  States 
for  money  claims  not  exceeding  $10,000.  The  Circuit  Courts  are 
given  appellate  jurisdiction  only. 

All  judges  of  the  United  States  are  appointed  by  the  President, 
with  and  by  the  consent  and  advice  of  the  Senate,  to  serve  during 
good  behavior.  There  are  in  all  eighty-three  federal  judicial  dis- 
tricts, and  for  each  of  these,  as  a  rule,  a  special  district  judge  is 
appointed,  though  in  thickly  populated  sections  of  the  country  it 
is  customary  to  have  more  than  one  judge  hold  court  in  a  district. 
Thus  at  present  there  are  one  hundred  and  four  district  judges. 

Federal  judges  of  the  inferior  courts  are,  so  to  say,  interchange- 
able. When  necessary,  a  district  judge  can  go  into  another  dis- 
trict than  his  own  and  either  aid  or  replace  the  district  judge  there. 
A  district  judge  may  also,  when  it  is  necessary  for  the  despatch  of 
business,  sit  as  circuit  judge  ;  and  a  circuit  judge  may,  in  his  turn, 
upon  occasion  hold  District  court.  This  seems  the  less  anomalous 
when  it  is  remembered  that  the  earliest  arrangement  was  for  the 
district  judges  to  hold  Circuit  court  always  in  the  absence  of  the 
justices  of  the  Supreme  Court  from  circuit,  or  in  conjunction 
with  them,  and  that  special  circuit  judges  were  appointed  only 
because  of  the  necessity  for  more  judges  consequent  upon  a  rapid 
increase  of  federal  judicial  business. 

The  District  Attorney  and  the  Marshal.  —  Every  district 
has  its  own  federal  district  attorney  and  its  own  United  States 
marshal,  both  of  whom  are  appointed  by  the  President.  It  is  the 
duty  of  the  federal  district  attorney  to  prosecute  all  offenders 
against  the  criminal  laws  of  the  United  States,  to  conduct  all 
civil  cases  instituted  in  his  district  in  behalf  of  the  United  States, 


372  THE   GOVERNMENT   OF   THE   UNITED    STATES. 

and  to  appear  for  the  defence  in  all  cases  instituted  against  the 
United  States;  to  appear  in  defence  of  revenue  officers  of  the 
United  States  where  they  are  sued  for  illegal  action,  etc.  The 
marshal  is  the  ministerial  officer  of  the  federal  Circuit  and 
District  courts.  He  executes  all  their  orders  and  processes,  arrests 
and  keeps  all  prisoners  charged  with  criminal  violation  of  federal 
law,  etc.,  and  has  within  each  state  the  same  powers,  within 
the  scope  of  United  States  law,  that  the  sheriff  of  that  state 
has  under  the  laws  of  the  state.  He  is  the  federal  sheriff. 

The  orders  and  processes  of  a  state  court  are  binding  and  opera- 
tive only  within  the  state  to  which  the  court  belongs  ;  the  orders 
and  processes  of  United  States  courts,  on  the  contrary,  are  bind- 
ing and  operative  over  the  entire  Union. 

The  Courts  of  the  District  of  Columbia  and  of  the  territories 
are  courts  of  the  United  States,  but  they  are  not  federal  courts ; 
they  bear,  so  far  as  their  jurisdiction  is  concerned,  the  character 
of  state  and  federal  courts  united.  The  only  laws  of  the  terri- 
tories and  of  the  District  of  Columbia  are  laws  of  the  United 
States,  inasmuch  as  the  legislatures  of  the  territories  act  under 
statutory  grant  from  Congress.1  The  territorial  legislatures  are, 
so  to  say,  commissioned  by  Congress ;  and  the  laws  which  they 
pass  are  administered  by  judges  appointed  by  the  President. 

The  territorial  courts  and  the  courts  of  the  District  of  Columbia 
do  not  come  within  the  view  of  the  Constitution  at  all.  With 
reference  to  them  Congress  acts  under  no  limitations  of  power 
whatever.  The  rule  of  tenure  during  good  behavior,  for  example, 
which  applies  to  all  judges  of  the  United  States  appointed  under 
the  Constitution,  does  not  apply  to  judges  of  the  territories  or  of 
the  District  of  Columbia.  The  term  of  office  of  territorial  judges 
is  fixed  at  four  years.  The  federal  courts  sitting  in  the  states, 
and  the  United  States  courts  established  in  the  territories,  ought 
not  to  be  thought  of  as  parts  of  the  same  system,  although  the 
Supreme  Court  is  the  highest  tribunal  of  appeal  for  both. 

The  procedure  of  a  federal  court  follows,  as  a  rule,  the  pro- 
cedure of  the  courts  of  the  state  in  which  it  is  sitting;  and 

1  Congress  early  enacted  that  the  people  of  the  District  of  Columbia  should 
continue  to  live  under  the  laws  which  had  previously  had  force  in  the  District 
before  its  cession  to  the  federal  government. 


THE   GOVERNMENT   OF   THE   UNITED   STATES.  373 

state  law  is  applied  by  the  courts  of  the  United  States  in  all  mat- 
ters not  touched  by  federal  enactment.  Juries  are  constituted, 
testimony  taken,  argument  heard,  etc.,  for  the  most  part,  accord- 
ing to  the  practice  of  the  state  courts ;  so  that,  so  far  as  possible, 
both  as  regards  the  outward  forms  observed  and  the  principles 
applied,  a  federal  court  is  domestic,  not  foreign,  to  the  state  in 
which  it  acts. 

It  is  not  within  the  privilege  of  Congress  to  delegate  to  the 
courts  of  the  states  the  functions  of  courts  of  the  United  States  ; 
for  the  Constitution  distinctly  provides  that,  besides  the  Supreme 
Court,  there  shall  be  no  court  authorized  to  exercise  the  judicial 
powers  of  the  United  States  except  such  as  Congress  "  may,  from 
time  to  time,  ordain  and  establish."  The  adoption  of  state  courts 
by  Congress  is  excluded  by  plain  implication.  A  very  interesting 
contrast  is  thus  established  between  the  federal  judicial  system 
of  the  United  States  and  the  federal  judicial  systems  of  Germany 
and  Switzerland. 

The  Federal  Executive.  —  "  The  executive  power,"  says 
the  Constitution,  "  shall  be  vested  in  a  President  of  the  United 
States  of  America,"  who  "  shall  hold  his  office  during  a  term  of 
four  years."  Of  course  it  is  impossible  for  one  man  actually  to 
exercise  the  whole  executive  power.  The  President  is  assisted 
by  numerous  heads  of  departments  to  whom  falls  so  large  a  part 
of  the  actual  duties  of  administration  that  it  has  become  substan- 
tially correct  to  describe  the  President  as  simply  presiding  over 
and  controlling  by  a  general  oversight  the  execution  of  the  law  ; 
which  is  doubtless  all  that  the  sagacious  framers  of  the  Constitu- 
tion expected.  The  Vice-President  has  no  part  in  the  executive 
function.  He  is  the  President's  substitute,  and  is  chosen  at  the 
same  time  and  in  the  same  manner  that  the  President  is  chosen. 

Election  of  a  President.  —  The  choice  is  not  direct  by 
the  people,  but  indirect,  through  electors  chosen  by  the  people. 
In  each  state  there  are  elected  as  many  electors  as  the  state  has 
representatives  and  senators  in  Congress,  the  "electoral  vote" 
of  ea  3h  state  being  thus  equal  to  its  total  representation  in  Con- 
gress. 

The  electors  are  voted  for  on  the  Tuesday  following  the  first 
Monday  of  November  in  the  year  which  immediately  precedes 


374  THE   GOVERNMENT   OF   THE   UNITED    STATES. 

the  expiration  of  a  presidential  term.  They  assemble  in  the 
several  state  capitals  to  cast  their  votes  on  the  second  Monday 
of  the  January  following.  Their  votes  are  counted  in  the  house 
of  Congress  sitting  in  joint  session  on  the  second  Wednesday  of 
the  following  February.  The  President  is  inaugurated  on  the 
fourth  of  March. 

Practical  Operation  of  the  Plan :  the  Party  Conventions.  — 
The  original  theory  of  this  arrangement  was  that  each  elector 
was  really  to  exercise  an  independent  choice  in  the  votes  which 
he  cast,  voting  for  the  men  whom  his  own  judgment  had  selected 
for  the  posts  of  President  and  Vice-President.  In  fact,  however, 
the  electors  only  register  party  decisions  made  during  the  pre- 
vious summer  in  national  conventions.  Each  party  holds  during 
that  summer  a  great  convention  composed  of  party  delegates  from 
all  parts  of  the  Union,  and  nominates  the  candidates  of  its  choice 
for  the  presidency  and  vice-presidency.  The  electors,  again,  are, 
in  their  turn,  chosen  according  to  the  nominations  of  party  con- 
ventions in  the  several  states ;  and  the  party  which  gains  the 
most  electors  in  the  November  elections  puts  its  candidates  into 
office  through  their  votes,  which  are  cast  in  obedience  to  the  will 
of  the  party  conventions  as  a  matter  of  course.  The  party  con- 
ventions, of  which  the  Constitution  knows  nothing,  are  in  fact  by 
far  the  most  important  part  of  the  machinery  of  election. 

Qualifications  for  the  Office  of  President.  — "  No  person, 
except  a  natural-born  citizen,  or  a  citizen  of  the  United  States  at 
the  time  of  the  adoption  of  this  constitution  shall  be  eligible  to 
the  office  of  president;  neither  shall  any  person  be  eligible  to 
that  office  who  shall  not  have  attained  to  the  age  of  thirty-five 
years,  and  been  fourteen  years  a  resident  within  the  United 
States." l  In  respect  of  age  there  is  here  only  a  slight  advance 
upon  the  qualifications  required  of  a  senator ;  in  respect  of  citi- 
zenship it  is  very  much  more  rigorous  than  in  the  case  of  mem- 
bers of  Congress. 

It  is  provided  by  the  Constitution  that  the  compensation  received  by 
judges  of  the  United  States  shall  not  be  diminished  during  their  terms  of 
office  ;  concerning  the  President,  whose  tenure  of  office  is  much  briefer, 

1  Constitution,  Art.  II.,  sec.  i.,  par.  5. 


THE  GOVERNMENT   OF   THE  UNITED   STATES.  375 

it  is  provided  that  his  compensation  shall  neither  be  diminished  nor  in- 
creased during  his  term. 

Duties  and  Powers  of  the  President.  —  It  is  the  duty 
of  the  President  to  see  that  the  laws  of  the  United  States  are 
faithfully  executed ;  he  is  made  cominander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
states  when  called  into  the  actual  service  of  the  United  States ; 
he  is  to  regulate  the  foreign  relations  of  the  country,  receiving 
all  foreign  ministers  and  being  authorized  to  make  treaties  with 
the  assent  of  two-thirds  of  the  Senate ;  he  is  to  appoint  and  com- 
mission all  officers  of  the  federal  government ;  and  he  may  grant 
reprieves  and  pardons.  The  Constitution  makes  all  his  appoint- 
ments subject  to  confirmation  by  the  Senate ;  but  it  also  gives 
Congress  the  power  to  remove  from  the  superintending  view  of 
the  Senate  the  filling  of  all  inferior  official  positions,  by  vesting 
the  appointment  of  such  subordinate  officers  as  it  thinks  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments.  As  a  matter  of  fact,  legislation  has  relieved  the 
Senate  of  the  supervision  of  the  vast  majority  of  executive 
appointments.  The  confirmation  of  the  Senate  is  still  neces- 
sary to  the  appointment  of  ambassadors,  other  public  ministers, 
and  consuls,  of  judges  of  the  courts  of  the  United  States, 
of  the  chief  military,  naval,  and  departmental  officials,  of  the 
principal  post-office  and  customs  officers,  —  of  all  the  more 
important  servants  of  the  general  government :  but  these  con- 
stitute only  a  minority  of  all  the  persons  receiving  executive 
appointment.  The  majority  are  appointed  without  legislative 
oversight. 

The  unfortunate,  the  demoralizing  influences  which  have  been 
allowed  to  determine  executive  appointments  since  President 
Jackson's  time  have  affected  appointments  made  subject  to  the 
Senate's  confirmation  hardly  less  than  those  made  without  its 
cooperation ;  senatorial  scrutiny  has  not  proved  effectual  for 
securing  the  proper  constitution  of  the  public  service.  Indeed, 
the  "courtesy  of  the  Senate," — the  so-called  "courtesy"  by 
which  senators  allow  appointments  in  the  several  states  to  be 
regulated  by  the  preference  of  the  senators  of  the  predominant 


876  THE   GOVERNMENT   OF   THE   UNITED   STATES. 

party  from  the  states  concerned,  has  frequently  threatened  to  add 
to  the  improper  motives  of  the  Executive  the  equally  improper 
motives  of  the  Senate. 

Reform  of  Methods  of  Appointment  to  Federal  Offices.  — 
The  attempts  which  have  been  made  at  various  times  to  reform 
by  law  the  system  of  appointments  have  not  been  directed 
towards  the  higher  offices  filled  with  the  consent  of  the  Senate, 
but  only  towards  those  inferior  offices  which  are  filled  by  the 
single  authority  of  the  President  or  of  the  heads  of  the  executive 
departments  ;  have  touched  in  their  results,  indeed,  only  the  less 
important  even  among  those  offices.  The  Act  which  became  law 
in  June,  1883,  and  which  is  known  as  the  "  Pendleton  Act,"  may 
be  said  to  cover  only  *  employees ' :  it  does  not  affect  any  person 
really  in  authority,  though  it  does  affect  a  large  body  of  federal 
servants.  It  provides,  in  brief,  for  the  appointment  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate,  of  a  Civil 
Service  Commission  consisting  of  three  persons,  not  more  than 
two  of  whom  shall  be  adherents  of  the  same  political  party, 
under  whose  recommendation,  as  representatives  of  the  President, 
selections  shall  be  made  for  the  lower  grades  of  the  federal  serv- 
ice upon  the  basis  of  competitive  examination.  It  forbids  the 
solicitation  of  money  from  employees  of  the  government  for 
political  uses,  and  all  active  party  service  on  the  part  of  members 
of  the  civil  administration.  It  endeavors,  in  short,  to  "  take  the 
civil  service  out  of  politics." 

The  carrying  out  of  those  portions  of  the  Act  which  relate  to  the 
method  of  choosing  public  officers  is,  however,  almost  entirely  subject  to 
the  pleasure  of  the  President.  The  Constitution  vests  in  him  the  power 
of  appointment,  subject  to  no  limitation  except  the  possible  advice  and 
consent  of  the  Senate.  Any  Act  which  assumes  to  prescribe  the  manner 
in  which  the  President  shall  make  his  choice  of  public  servants  must, 
therefore,  be  merely  advisory.  The  President  may  accept  its  directions 
or  not  as  he  pleases.  The  only  force  that  can  hold  him  to  the  observance 
of  its  principle  is  the  force  of  public  opinion. 

The  Presidential  Succession.  —  In  case  of  the  removal,  death, 
resignation,  or  disability  of  both  the  President  and  Vice-President,  the 
office  of  President  is  to  be  filled  ad  interim  by  the  Secretary  of  State,  or,  if 
he  cannot  act,  by  the  Secretary  of  the  Treasury,  or,  in  case  he  cannot  act,  by 
the  Secretary  of  War  ;  and  so  on,  in  succession,  by  the  Attorney-General, 


THE  GOVERNMENT  OF  THE  UNITED  STATES.     377 

the  Postmaster-General,  the  Secretary  of  the  Navy,  or  the  Secretary  of  the 
Interior,  the  Secretary  of  Agriculture,  the  Secretary  of  Commerce,  and 
the  Secretary  of  Labor.  None  of  these  officers  can  act,  however,  unless 
he  have  the  qualifications  as  to  age,  citizenship,  and  residence  required  by 
the  Constitution  of  occupants  of  the  presidential  chair.  Until  1886,  the 
'  succession '  passed  first  to  the  president  pro  tempore  of  the  Senate,  and, 
failing  him,  to  the  Speaker  of  the  House  of  Representatives.  This  was 
found  inconvenient,  because  there  are  intervals  now  and  again  when  there 
is  neither  a  president  pro  tempore  of  the  Senate  nor  a  Speaker  of  the 
House.  Those  officers,  moreover,  are  by  no  means  always  of  the  same 
political  party  as  the  President  and  Vice-President.  Some  doubt  was  felt, 
too,  as  to  whether  they  were  '  officers '  within  the  meaning  of  the  Con- 
stitution, in  the  clause  in  which  Congress  is  authorized  to  designate  the 
'  officers  '  upon  whom  in  such  cases  the  presidential  office  was  to  devolve. 

Relations  of  the  Executive  to  Congress.  —  The  only  pro- 
visions contained  in  the  Constitution  concerning  the  relation  of 
the  President  to  Congress  are  these :  that,  "  he  shall,  from  time 
to  time,  give  to  the  congress  information  of  the  state  of  the 
union,  and  recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient " ;  and  that  "  he  may,  on 
extraordinary  occasions,  convene  both  houses,  or  either  of  them," 
in  extra  session,  "and,  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper  "  (Art.  II.,  sec.  iii.).  His 
power  to  inform  Congress  concerning  the  state  of  the  Union  and 
to  recommend  to  it  the  passage  of  measures  is  exercised  only  in 
annual  and  special  <  messages/ 

Washington  and  John  Adams  interpreted  this  clause  to  mean  that 
they  might  address  Congress,  in  person,  as  the  sovereign  in  England  may 
do  :  and  their  annual  communications  to  Congress  were  spoken  addresses. 
But  Jefferson,  the  third  President,  being  an  ineffective  speaker,  this  habit 
was  discontinued,  and  the  fashion  of  written  messages  was  inaugurated 
and  firmly  established.1  (Compare  page  193.)  Possibly,  had  the  President 
not  so  closed  the  matter  against  new  adjustments,  this  clause  of  the  Con- 
stitution might  legitimately  have  been  made  the  foundation  for  a  much 
more  habitual  and  informal,  and  yet  at  the  same  time  much  more  public 
and  responsible,  interchange  of  opinion  between  the  Executive  and  Con- 
gress. Having  been  interpreted,  however,  to  exclude  the  President  from 

1  President  Wilson  reverted  to  the  original  practice,  and  has  read  his  mes- 
sages to  Congress. 


378  THE   GOVERNMENT    OF    THE   UNITED    STATES. 

any  but  the  most  formal  and  ineffectual  utterance  of  advice,  our  federal 
executive  and  legislature  have  been  shut  off  from  cooperation  and  mutual 
confidence  to  an  extent  to  which  no  other  modern  system  furnishes  a 
parallel.  In  all  other  modern  governments  the  heads  of  the  administrative 
departments  are  given  the  right  to  sit  in  the  legislative  body  and  to  take 
part  in  its  proceedings.  The  legislature  and  executive  are  thus  associated 
in  such  a  way  that  the  ministers  of  state  can  lead  the  houses  without 
dictating  to  them,  and  the  ministers  themselves  be  controlled  without 
being  misunderstood,  —  in  such  a  way  that  the  two  parts  of  the  govern- 
ment which  should  be  most  closely  coordinated,  the  part,  namely,  by 
which  the  laws  are  made  and  the  part  by  which  the  laws  are  executed, 
may  be  kept  in  close  harmony  and  intimate  cooperation,  giving  coherence 
to  the  action  of  the  one  and  energy  to  the  action  of  the  other. 

The  Executive  Departments.  —  The  Constitution  does 
not  explicitly  provide  for  the  creation  of  executive  departments, 
but  it  takes  it  for  granted  that  such  departments  will  be  created. 
Thus  it  says  (Art.  II.,  sec.  ii.,  par.  1,  2)  that  the  President  "  may 
require  the  opinion,  in  writing,  of  the  principal  officer  in  each  of 
the  executive  departments,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices,"  and  that  Congress  may  vest  the  ap- 
pointment of  such  inferior  officers  as  it  may  see  fit  "  in  the  heads 
of  departments.'7  The  executive  departments  consequently  owe 
their  creation  and  organization  to  statute  only. 

The  first  Congress  erected  three  such  departments,  namely, 
the  departments  of  State,  of  the  Treasury,  and  of  War  ;  providing, 
besides,  for  the  creation  and  exercise  of  the  office  of  Attorney- 
General,  but  not  erecting  a  Department  of  Justice.  In  1798  the 
management  of  the  navy,  which  had  at  first  been  included  in  the 
duties  of  the  War  Department,  was  intrusted  to  a  special  Depart- 
ment of  the  Navy ;  in  1829  the  post-office,  which  had  been  a  sub- 
division of  the  Treasury,  was  created  an  independent  Department ; 
and  in  1849  a  Department  of  the  Interior  was  organized  to  receive 
a  miscellany  of  functions  not  easy  to  classify,  except  in  the  fea- 
ture of  not  belonging  properly  within  any  department  previously 
created.1  In  1870  the  Attorney-General  was  put  at  the  head  of  a 

1  A  character  like  that  of  the  Department  of  the  Interior,  it  is  interesting 
to  remark,  may  be  attributed  to  some  corresponding  department,  bearing 
either  this  name  or  a  name  of  like  significance,  in  almost  every  other  modern 
government.  There  is  everywhere  some  department  of  state  to  receive 
functions  not  otherwise  specially  disposed  of. 


THE   GOVERNMENT   OF   THE    UNITED    STATES.  379 

regularly  constituted  Department  of  Justice ;  and  in  1889  the 
Department  of  Agriculture,  which  had  existed  as  a  subordinate 
executive  bureau  since  1862,  was  given  full  standing  under  a 
Secretary  of  '  cabinet '  rank ;  in  1903  the  Department  of  Com- 
merce and  of  Labor  was  established,  and  in  1913  the  Department 
of  Labor. 

We  have,  thus,  at  present,  ten  executive  departments, 
viz. :  (1)  A  Department  of  State,  which  is  what  would  be  called  in 
most  other  governments  our  *  foreign  office,'  having  charge  of  all 
the  relations  of  the  United  States  with  foreign  countries. 

(2)  A  Department  of  the  Treasury,  which  is  the  financial 
agency  of  the  government,  and  whose  functions  cover  the  collec- 
tion of  the  public  revenues  accruing  through  the  customs  duties 
and  the  internal  revenue  taxes,  their  safe   keeping  and   their 
disbursement  in  accordance  with  the  appropriations  from  time  to 
time  made  by  Congress ;  the  auditing  of  the  accounts  of  all  de- 
partments ;  the  supervision  and  regulation  of  the  national  banks 
;u id  of  the  currency  of  the  United  States  ;  the  coinage  of  money  ; 
and  the  collection  of  certain  industrial  and  other  statistics.     This 
Department,  therefore,  contains  within  it  the  treasury  and  comp- 
trolling  functions  which  in  the  states  are  separated. 

To  this  Department  is  attached  also  the  Bureau  of  Printing 
and  Engraving,  by  which  all  the  printing  of  the  paper  currency, 
bonds,  and  revenue  stamps  of  the  government  is  done. 

(3)  A  Department  of  War,  which  has  charge  of  the  mili- 
tary forces  and  defences  of  the  Union.     It  has  charge  of  the 
Military  Academy  at  West  Point,  and  supervision  of  the  various 
military  schools  to  which  Congress  gives  aid. 

(4)  A  Department  of  the  Navy,  which  has  charge  of  the 
naval  forces  of  the  general  government ;  and  which  has  charge  of 
the  Naval  Academy  at  Annapolis  and  the  Naval  War  College  at 
Newport. 

(5)  A  Department  of  Justice,  from  which  emanates  all  the 
legal  advice  of  which  the  federal  authorities  stand  in  need  at  any 
time,  and  to  which  is  intrusted  the  supervision  of  the  conduct  of 
all  litigation  in  which  the  United  States  may  be  concerned.     To 
it  are  subordinate  all  the  marshals  and  district  attorneys  of  the 
United  States,  —  all  ministerial,  non-judicial  law  officers,  that  is, 


380          THE   GOVERNMENT   OF   THE   UNITED   STATES. 

in  the  service  of  the  government.  It  may  be  compendiously  de- 
scribed as  the  lawyer  force  of  the  government.  It  is  presided  over 
by  an  Attorney-General,  all  the  other  department's,  except  the 
Post-Office,  being  under  '  Secretaries.' 

(6)  A  Post-office  Department,  under  a  Postmaster-Gen- 
eral, which  is  charged  with  the  carrying  and  delivery  of  letters 
and  parcels,  with  the  transmission  of  money  by  means  of  certain 
'  money  orders '  issued  by  the  Department,  or  under  cover  of  a 
careful  system  of  registration,  and  with  making  the  proper  postal 
arrangements  with  foreign  countries. 

These  arrangements  with  foreign  countries  may  be  made  with- 
out the  full  formalities  of  treaty,  the  consent  of  the  President 
alone  being  necessary  for  the  ratification  of  international 
agreements  made  by  the  Postmaster-General  for  the  facilitation 
of  the  functions  of  the  Department.  The  United  States  is  a 
member  of  the  Universal  Postal  Union,  to  which  most  of  the 
civilized  countries  of  the  world  belong.  The  central  office  of  this 
Union  is  under  the  management  of  the  Swiss  administration. 
Its  administrative  expenses  are  defrayed  by  contribution  of  the 
various  governments  belonging  to  the  Union. 

(7)  A  Department  of  the  Interior,   which  has   charge: 

(I)  Of  the  management  of  the  public  lands  (General  Land  Office) ; 

(II)  Of  the  government's  dealings  with  the  Indians,  a  function 
which  is  exercised  through  a  special  Commissioner  of   Indian 
Affairs  in  Washington  and  various  agencies  established  in  dif- 
ferent parts  of  the  Indian  country. 

It  is  through  this  Indian  Bureau,  for  example,  that  all  laws  con- 
cerning the  settlement,  assistance,  or  supervision  of  the  tribes  are 
administered,  as  well  as  all  laws  concerning  the  payment  of 
claims  made  upon  the  federal  government  for  compensation  for 
depredations  committed  by  the  Indians,  and  laws  touching  the 
distribution  and  tenure  of  land  among  the  Indians. 

(Ill)  Of  the  paying  of  pensions  and  the  distribution  of  bounty 
lands,  a  function  which  it  exercises  through  a  special  Commis- 
sioner of  Pensions;  (IV)  Of  the  issuing  and  recording  of  patents 
and  the  preservation  of  the  models  of  all  machines  patented. 
For  the  performance  of  these  duties  there  is  a  Patent  Office. 
(V)  Of  the  keeping  and  distribution  of  all  public  documents 


THE  GOVERNMENT   OF   THE   UNITED   STATES.  381 

(Superintendent  of  Public  Documents)  ;  (VI)  Of  the  collection 
of  statistical  and  other  information  concerning  education, 
and  the  diffusion  of  the  information  so  collected  for  the  pur- 
pose of  aiding  the  advance  and  systematization  of  education 
throughout  the  country  (The  Office  of  Education)  ;  (VII)  Of  the 
superintendence  of  the  government  hospital  for  the  insane  and 
the  Columbia  Asylum  for  the  Deaf  and  Dumb ;  (VIII)  Of  the  Geo- 
logical Survey  ;  (IX)  Of  the  Freedmen's  Hospital  and  the  Howard 
University. 

Many  of  these  subdivisions  of  the  Interior,  through  in  strict- 
ness subject  to  the  oversight  and  control  of  the  Secretary  of  the 
Interior,  have  in  reality  a  very  considerable  play  of  independent 
movement. 

(8)  A  Department  of  Agriculture,  which  is  charged  with 
furthering  in  every  possible  way,  by  the  collection  of  information 
not  only,  but  also  by  the  prosecution  of  scientific  investigation 
with  reference  to   the  diseases   of  plants,  etc.,  the  agricultural 
interests  of  the  country,  and  under  which  there  are  maintained  a 
special  Forestry  Division,  and  the  national  Weather  Bureau. 

(9)  A  Department  of  Commerce.  —  By  an  Act  of  1903  a 
Department  of  Commerce  and  Labor  was  established  which  in 
1913  was  divided,  the  Department  of  Labor  becoming  a  separate 
Department.     It  is  the  province  and  duty  of  the  Department  of 
Commerce  to  foster,  promote  and  develop  the  foreign  and  domes- 
tic commerce,  the  mining,  manufacturing,  shipping  and  fishing 
industries  of  the  United  States.     From  the  Treasury  Department 
there  have  been  transferred  to  the  Department  of  Commerce  the 
Light-House  Board  and  Establishment,  the  Steamboat-Inspection 
Service,  the  Bureau  of  Navigation,  the  United  States  Shipping 
Commissioners,  the  National  Bureau  of  Standards,  the  Coast  and 
Geodetic  Survey ;  from  the  Department  of  the  Interior,  the  Cen- 
sus Office ;  from  the  Department  of  State,  the  Bureau  of  Foreign 
Commerce ;  and  under  it  were  placed  also  the  Fish  Commission, 
and  the  office  of  Commissioner  of  Fish  and  Fisheries. 

(10)  A  Department  of  Labor.  —  In  1913  the  Department 
of  Commerce  and  Labor  was  divided  and  a  separate  Department 
of  Labor  was  created,  charged  with  the  duty  to  foster,  promote 
and  develop  the  welfare  of  the  wage  earners,  to  improve  their 


382     THE  GOVERNMENT  OF  THE  UNITED  STATES. 

working  conditions,  and  to  advance  their  opportunities  for  profit- 
able employment.  Under  its  direction  were  placed  the  Bureaux 
of  Labor  Statistics,  Immigration,  Naturalization,  and  the  Chil- 
dren's Bureau. 

Set  apart  to  themselves,  and  therefore  without  representation 
in  the  Cabinet,  there  are  (1)  the  Interstate  Commerce  Commis- 
sion, a  semi-judicial  body  by  which  the  federal  statutes  forbid- 
ding unjust  discrimination  in  railway  rates  in  interstate  freight 
or  passenger  traffic,  prohibiting  certain  sorts  of  combinations  in 
railroad  management,  etc.,  are  interpreted  and  enforced.  (2)  The 
Civil  Service  Commission,  by  which  the  Act  mentioned  on  page 
376  is  administered.  (3)  The  Government  Printing  Office, 
which  prints  all  public  documents.  (4)  The  Smithsonian  Insti 
tution,  the  National  Museum,  and  the  Bureau  of  Ethnology. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Histories*: 

Adams,  Henry,  The  History  of  the  United  States  under  the  Admin- 
istrations of  Jefferson  and  Madison,  9  vols.,  N.Y.,  1889-1891; 
Documents  relating  to  New  England  Federalism,  Boston,  1877. 

Adams,  Herbert  B.,  Maryland's  Influence  upon  Land  Cessions  to  the 
United  States,  in  the  Johns  Hopkins  Studies  in  Historical  and  Politi- 
cal Science,  3d  Series,  No.  1. 

American  Nation  Series. 

American  Statesman  Series,  a  series  of  Biographies.  26  vols.,  12mo, 
Boston,  1882-1891. 

Bancroft,  George,  History  of  the  United  States,  from  the  discovery  of 
America  to  the  adoption  of  the  federal  constitution.  Revised  ed., 
6  vols.,  8vo,  N.Y. 

Benton,  Thomas  H.,  Thirty  Years'  View ;  or,  A  History  of  the  Work- 
ing of  the  American  Government  for  Thirty  Years,  1820-1850. 
2  vols.,  8vo,  N.Y.,  1854-1856. 

Bishop,  Cortlandt  F.,  History  of  Elections  in  the  American  Colonies  (in 
Columbia  University  Studies  in  History,  Economics,  and  Public 
Law),  N.Y.,  1896. 

Curtis,  George  T.,  History  of  the  Origin,  Formation,  and  Adoption  of 
the  Constitution  of  the  United  States.  3  vols.,  N.Y.,  1854,  1858, 
1896. 

Doyle,  J.  A.,  The  English  Colonies  in  America.  5  vols.,  N.Y.,  London 
and  N.Y.,  1882-1907. 


THE   GOVERNMENT    OF    T1IK    I'NITKD    STATES.  383 

• 

Fisher,  George  P.,  The  Colonial  Era,  X.Y.,  1892. 
Fiske,  John,  The  Critical  Period  of  American  History,  Boston,  1888, 

JL897. 
Froth  in  r/Jiam,  Richard,  Rise  of  the  Republic  of  the  United  States,  3d  ed., 

Boston,  1881. 

Hart,  Albert  B.,  Formation  of  the  Union,  23d  ed.,  London  and  N.Y. 
lliltlreth,  R.,  History  of  the  United  States  from  the  Discovery  of  Amer- 
ica to  the   End  of   the  Sixteenth  Congress  (1821).     Two   Series, 

6  vols.,  New  ed.,  N.Y.,  1879. 
Hnlst,  II.  von,  The  Constitutional  and  Political  History  of  the  United 

States.     Trans,  from  the  German.     7  vols.,  Chicago,  1877-1892. 
Jameson,  J.  F.  (editor),  Essays  in  the  Constitutional   History  of   the 

United  States  in  the  Formative  Period,  1775-1789,  Boston,  1889. 
Johnston,    Alexander,    History  of    American   Politics,  3d   ed.,  revised, 

N.Y.,  1890;    The  First  Century  of   the   Constitution,  in  the  New 

Princeton  Review,  September,  1887. 
London,  Judson  S.,  The  Constitutional  History  and  Government  of  the 

United  States.     A  Series  of  Lectures.     Boston,  1889. 
Lodge,  Henry  C.,  A  Short  History  of  the  English  Colonies  in  America, 

N.Y.,  1881. 
Mni'Mnaicr,  John  B.,  History  of  the  People  of  the  United  States,  8  vols., 

N.Y.,  1913. 
Pith-in,  Timothy,  Political  and  Civil  History  of  the  United  States  of 

America  from  their  Commencement  to  the  Close  of  the  Adminis- 
tration of  Washington,  2  vols.,  8vo,  New  Haven,  1828. 
Rhodes,  James  F.,  History  of  the  United  States  from  the  Compromise  of 

1850,  8  vols.,  N.Y.,  1893-1906. 
Roosevelt,  Theodore,  The  Winning  of  the  West,  4  vols.,  London  and 

N.Y.,  1889-1896. 
ScJiouler,  James,  History  of   the  United  States  of  America  under  the 

Constitution,  7  vols.,  N.Y.,  1889-1913. 
Scott,  Eben  G.,  Development  of  Constitutional  Liberty  in  the  English 

Colonies  of  America,  N.Y.,  1882. 

Sloane,  William  M.,  The  French  War  and  the  Revolution,  N.Y.,  1893. 
Stn/iirood,  Edward,  A  History   of  the  Presidency,  2  vols.,  Boston  and 

N.Y.,  1916. 
Sumner,  William  G.,  Politics  in  America,  1776-1876.     North  American 

Review,  January,  1876,  p.  47. 
Taylor,  Hannis,  The  Origin  and  Growth  of  the   English  Constitution, 

2  vols.,  Boston,  1889-1898. 
TJiwaites,  Reuben  G.,  The  Colonies,  1492-1750,  22d  ed.,  London  and 

X.Y.,  1910. 


384  THE   GOVERNMENT    OF    THE    UNITED    STATES. 

• 

Tucker,  George,  The  History  of  the  United  States  from  their  Coloniza- 
tion to  the  End  of  the  Twenty-sixth  Congress  in  1841,  4  vols., 
Phila.,  1856-1857. 

Walker,  Francis  A.,  The  Making  of  the  Nation,  N.Y.,  1895. 

Wilson,  Woodrow,  Division  and  Reunion,  1829-1889,  13th  ed.,  London  and 
N.Y.,  1898 ;  and  History  of  the  American  People,  5  vols.,  N.Y.,  1908. 

Winsor,  Justin  (editor),  Narrative  and  Critical  History  of  America, 
Vol.  VII.,  Boston,  1888.  Contains  full  bibliographical  notes. 

The  controversial  literature  accompanying  and  preceding  the  War  of 
Secession  may  be  seen,  representatively,  in  : 

Adams,  John,  Works. 

Bledsoe,  Albert  T.,  Is  Davis  a  Traitor?    Balto.,  1866. 

Brownson,  O.  A.,  The  American  Republic :  its  Constitution,  Tendencies, 
and  Destiny,  N.Y.,  1866  and  1886. 

Calhoun,  John  Caldwell,  Works. 

Centz,  P.  C.  (B.  J.  Sage),  The  Republic  of  Republics,  4th  ed.,  Boston, 
1881. 

Hurd,  J.  C.,  The  Theory  of  Our  National  Existence,  Boston,  1881. 

Jefferson,  Thomas,  Works. 

Stephens,  Alexander  H.,  A  Constitutional  View  of  the  War  between  the 
States,  2  vols.,  8vo,  Phila.,  1868. 

Webster,  Daniel,  Speeches. 
Commentaries  and  Treatises : 

Atkinson,  C.  T.,  The  Committee  on  Rules  and  the  Overthrow  of  Speaker 
Cannon,  N.Y.,  1911. 

Beard,  C.  A.,  American  Government  and  Politics. 

Borgeaud,  Charles,  The  Adoption  and  Amendment  of  Constitutions  in 
Europe  and  America,  N.Y.,  1895. 

Boutmy,  Emile,  Studies  in  Constitutional  Law,  London  and  N.Y., 
1891. 

Bryce,  James,  The  American  Commonwealth,  2  vols.,  Revised  ed., 
N.Y.,  1915. 

Burgess,  John  W.,  Political  Science  and  Constitutional  Law,  2  vols., 
Boston,  1891. 

Carter,  C.H.,  Connecticut  Boroughs,  in  New  Haven  Historical  Society's 
Papers,  Vol.  IV. 

Cooley,  Thomas  M.,  Treatise  on  the  Constitutional  Limitations  which 
rest  upon  the  Legislative  Power  of  the  States"  of  the  American 
Union,  2d  ed.,  Boston,  1871;  The  General  Principles  of  Con- 
stitutional Law  in  the  United  States  of  America,  Boston,  1880, 
and  several  later  editions.  And  (with  others)  Constitutional 


THE   GOVERN  MK NT   OF    THE    UNITED    STATES.  385 

History  of  the  United  States  as  seen  in  the  Development  of  American 

Law,  a  survey  of  the  successive  constitutional  decisions  of   the 

Supreme  Court  of  the  United  States,  N.Y.,  1889. 

M,  E.  S.,  The  Doctrine  of  Judicial  Review,  Princeton,  1914. 
Coxe,     Brinton,     Judicial     Power    and   Unconstitutional    Legislation, 

Phila.,  1893. 
Dicey,  Albert  V.,  Lectures  Introductory  to  the  Study  of  the  Law  of  the 

Constitution,  8th  ed.,  London,  1915.     This  book,  though  a  com- 
mentary on  the  English  constitution,  contains  much  excellent  com- 
ment also  on  our  own. 
Digest  of  State    Constitutions.     Prepared  for  the  use  of  the  New  York 

State  Constitutional  Convention.     Albany,  1915. 
l)ii[>riez,  L.,  Les  Ministres  dans  les  principaux  Pays  d'Europe  et  d'Ame"- 

rique,  2  vols.,  Paris,  1892.     Vol.  II.,  pp.  3  et  seq. 

Ely,  Richard  T.,  Taxation  in  American  States  and  Cities,  N.Y.,  1888. 
The  Federalist,  by  Alexander  Hamilton,  James  Madison,  and  John  Jay. 
Fiske,  John,  Civil  Government  in  the  United  States  considered  with 

Some  Reference  to  its  Origins,  Boston,  1890. 
Follett,  M.  P.,  The  Speaker  of  the  House  of  Representatives,  London 

and  N.Y.,  1896. 

Ford,  H.  J.,  The  Rise  and  Growth  of  American  Politics. 
Ford,  W.  C.,  The  American  Citizen's  Manual.     Part  I.     N.Y.,  1882. 
Goodnow,  Frank  J.,  Comparative  Administrative  Law,  2  vols.,  London 

and  N.Y.,  1893 ;  Municipal  Home  Rule,  London  and  N.Y.,  1895. 
Haines,  C.  G.,  The  American  Doctrine  of  Judicial  Supremacy,  N.Y. 
Harrison,  Benjamin,  This  Country  of  Ours,  N.Y.,  1897. 
Hart,  A.  B.,  Actual  Government,  3d  ed.,  1910. 
Hart  and  McLaughlin,  Cyclopedia  of  American  Government,  N.Y.  and 

London,  1914. 
Howard,  George  E.,  Local  Constitutional  History  of  the  United  States, 

VoL  L,  8vo,  Balto.,  1885. 
Jameson,  J.  F.,  Introduction  to  the  Constitutional  and  Political  History 

of  the  Individual  States,  in  the  Johns  Hopkins  University  Studies  in 

Historical  and  Political  Science,  4th  Series,  No.  V. 
Johns   Hopkins    Studies   in    Historical    and  Political    Science,    14   vols., 

Balto.,  1883-1896. 
Maine,  Sir  H.  S.,  Popular  Government,  N.Y.,  1886.     Especially  Chap. 

VI. 

McConachie,  L.  C.,  Congressional  Committees. 
Me  Call,  S.  W.,  The  Business  of  Congress,  N.Y.,  1911. 
Oberholzer,  E.  P.,  The  Referendum  in  America,  New  ed.,  N.Y.,  1911. 
Parker,  Joel,  Jaffrey   Address,   1873.     Origin,    Organization,    and   In- 


386  THE   GOVERNMENT   OF    THE   UNITED    STATES. 

fluence  -of  the   Towns  of   New  England.     Proceedings  Mass.  Hist. 

Soc'y,  June,  1886. 
Poore,  Ben :  P.,  Federal  and  State  Constitutions,  Colonial  Charters,  and 

other  Organic   Laws  of   the   United  States,  2  vols.,  Washington, 

1877. 

Schouler,  James,  Constitutional  Studies,  N.Y.,  1897. 
Shires  and  Shire  Towns  in  the   South.     Lippincotfs  Magazine^  Aug., 

1882. 

Sloane,  W.  M.,  Party  Government  in  the  U.S.,  N.Y.  and  London,  1914. 
Stevens,  C.  E.,  Sources  of  the  Constitution  of  the  United  States,  Lon- 
don and  N.Y.,  1894. 

Story,  Joseph,  Commentaries  on  the  Constitution.     Ed.  by  T.  M.  Cooley. 
Thorpe,  Francis  N.,  Compiled  Federal  and  State  Constitution,  7  vols., 

Govt.  Printing  Office,  1909. 
Tocqueville,  Alexis  de,  Democracy  in  America.     Translated  by  Henry 

Reeve.     New  ed.,  London,  1875. 
Wilson,  Woodrow,   Congressional  Government,  A  Study  in  American 

Politics,  Boston,  1885 ;  and  Constitutional  Government  in  the  United 

States,  N.Y.,  1908. 
Young,  J.  T.,  The  New  American  Government  and  its  Work,  N.Y.,  1916. 


XI. 
THE   GOVERNMENTS   OF  SWITZERLAND. 


Feudalism  in  Switzerland.  —  Until  the  beginning  of  the 
fourteenth  century  the  towns  and  communes  of  the  country  now 
called  Switzerland  were  all  held  fast  in  the  meshes  of  the  feu- 
dal system.  Real  vassalage,  indeed,  such  as  the  low  countries  of 
France  and  Germany  knew,  had  never  penetrated  to  all  the  val- 
leys of  the  Alps  ;  many  a  remote  commune  had  never  known  any- 
thing but  a  free  peasantry;  and  hardly  anywhere  near  the  heart 
of  the  great  mountains  had  feudal  fealty  meant  what  it  meant 
elsewhere.  Still  great  neighbor  lords  and  monasteries  had  swept 
even  these  mountain  lands  at  least  nominally  within  their  over- 
lordships,  and  most  of  the  Swiss  Cantons  of  to-day  represent 
pieces  of  old  feudal  domains. 

First  Movements  towards  Cantonal  Independence.  —  In 
1309,  however,  began  the  process  which  was  to  create  the  Switzer- 
land of  our  time.  In  that  year  the  Cantons  of  Schwyz,  Uri,  and 
Unterwalden,  lying  close  about  the  lake  of  Lucerne,  won  from  the 
Emperor  Henry  VII.  the  recognition  of  their  freedom  from  all 
supremacy  save  that  of  the  Empire  itself.  They  had  already, 
about  the  middle  of  the  thirteenth  century,  drawn  together  into 
a  league  which  was  to  prove  the  seed  of  the  modern  Confederacy. 
That  Confederacy  has  two  distinguishing  characteristics.  It  has 
brought  down  to  us,  through  an  almost  unbroken  tradition,  the 
republican  institutions  of  the  Middle  Ages;  and  it  has  by  slow 
processes  of  cautious  federation  drawn  together  into  a  real  union 
communities  the  most  diverse  alike  in  point  of  race,  of  language, 
and  of  institutions  without  destroying  their  individuality. 

The  Processes  of  Confederate  Growth.  —  In  its  briefest 
terms  the  story  is  this.  The  Cantons  broke  from  the  toils  of  the 

387 


388  THE   GOVERNMENTS   OF    SWITZERLAND. 

feudal  system  while  still  in  possession  of  those  local  liberties 
which  the  disintegrateness  of  that  system  gave  leave  to  grow 
wherever  courageous  men  could  muster  numbers  enough  to  assert 
their  independence;  having  a  common  cause  against  the  feudal 
powers  about  them,  they  slowly  drew  together  to  each  other's 
support;  and,  having  allied  themselves,  they  went  on  to  show  the 
world  how  Germans,  Frenchmen,  and  Italians,  if  only  they  respect 
each  the  other's  liberties  as  they  would  have  their  own  respected, 
may  by  mutual  helpfulness  and  forbearance  build  up  a  union  at 
once  stable  and  free.  Several  centuries  elapsed  before  the  devel- 
opment was  complete,  for  the  Confederation,  as  finally  made  up, 
consisted  of  two  very  different  elements :  of  strong  and  for  the 
most  part  aristocratic  free  cities  and  of  quiet  rural  peasant 
democracies.  It  was  necessarily  a  long  time  before  even  common 
dangers  and  common  interests  brought  proud  Cantons  like  Bern 
and  aristocratic  cities  like  Geneva  into  cordial  relations  with 
Schwyz,  Uri,  and  Unterwalden,  the  humble  originators  of  the 
Confederacy.  But  circumstances  constrained  and  wisdom  pre- 
vailed :  so  that  union  was  at  last  achieved. 

French  Interference. —The  year  1513  may  be  taken  as 
marking  the  close  of  the  period  during  which  the  Confederacy 
won  the  place  it  was  always  to  keep  among  the  powers  of  Europe. 
In  that  year  the  League  was  joined  by  the  last  of  those  thirteen 
German  Cantons  which  were  to  constitute  its  central  membership 
down  to  the  French  Eevolution.  It  was  not  till  1848,  however, 
that  its  constitution  was  put  upon  its  present  foundations ;  and 
not  till  1874  that  that  constitution  received  at  all  points  its  pres- 
ent shape.  In  the  meantime  events  of  the  greatest  magnitude 
gave  direction  to  Swiss  affairs.  The  great  powers  had  recognized 
the  independence  of  Switzerland  in  the  Treaty  of  Westphalia, 
1648.  The  thirteen  original  Cantons  had  received  great  French 
cities,  like  Geneva,  to  the  west,  and  various  Italian  lands,  to  the 
south,  either  into  close  alliance  or  into  fixed  subjection.  The 
French  Revolution  had  sent  French  troops  into  Switzerland,  in 
support  of  a  fruitless  attempt  to  manufacture  out  of  the  always 
stiffly  independent  Cantons,  hitherto  only  confederates,  a  com- 
pact and  centralized  'Helvetic  Republic,'  after  the  new  model 
just  set  up  in  unhappy  France  (1798-1802).  Napoleon  had  inter- 


THE    GOVERNMENTS    OF   SWITZERLAND.  389 

vened  (1803-1814)  for  the  purpose  of  both  loosing  these  artificial 
bonds  and  creating  a  new  cement  for  the  League  in  the  shape  of 
a  common  allegiance  to  himself.  And,  in  1815,  the  pressure  of 
the  French  power  being  removed,  reaction  had  come.  The  irri- 
tated Cantons,  exasperated  by  the  forms  of  a  government  not  of 
their  own  choosing,  had  flung  apart,  to  the  practice  of  principles 
of  cantonal  sovereignty  broader,  extremer  even  than  those  upon 
which  they  had  based  their  Union  before  1798.  And  then  reac- 
tion, in  its  turn,  brought  its  own  penalties.  Troubles  ensued 
which  read  very  much  like  those,  so  familiar  to  Americans, 
which  forced  a  strong  federal  government  upon  the  United 
States. 

The  Sonderbund  War.  —  It  was,  however,  differences  of 
religious,  not  of  political,  opinion  which  were  in  Switzerland  the 
occasion  of  the  strife  which  was  to  bring  union  out  of  disunion. 
After  the  power  of  Napoleon  had  been  broken,  the  Congress 
of  Vienna  had  sought  to  readjust  all  the  arrangements  that  he 
had  disturbed,  and  Swiss  affairs  had  not  been  overlooked.  The 
Cantons  were  induced  to  receive  Geneva,  Valais,  Neuchatel,  and 
the  territories  hitherto  held  as  dependencies,  into  full  confed- 
erate membership,  and  to  agree  to  a  Pact  (known  as  the  Pact  of 
1815)  which  gave  to  the  League,  with  its  increased  membership 
of  twenty-two  Cantons,  a  new  basis  of  union.  One  of  the  clauses 
of  that  Pact  contained  a  solemn  guarantee  of  the  rights  and  privi- 
leges of  the  monasteries  still  maintained  in  the  Roman  Catholic 
Cantons:  and  upon  that  guarantee  were  based  the  hopes  of  all 
parties  for  peace  among  the  members  of  the  League.  But  the 
guarantee  was  broken  down.  The  wave  of  democratic  reform 
swept  steadily  and  resistlessly  through  Switzerland  during  the 
revolutionary  period  of  1830-1848,  and  where  the  Protestant  and 
Roman  Catholic  parties  were  nearly  equal  in  popular  force  threat- 
ened  not  a  few  of  the  oldest  foundations  of  the  mediaeval  church. 
The  crisis  was  first  felt  in  Zurich,  where  the  excesses  of  a  radical 
party  temporarily  in  control  brought  about,  in  1839,  a  violent 
reaction.  The  next  year  saw  the  disturbance  transferred  to 
Aargau.  There  the  anti-Catholic  party,  commanding,  during  a 
period  of  constitutional  revision,  a  narrow  popular  majority,  and 
exasperated  by  the  violent  opposition  tactics  of  the  clerical  party, 


390  THE    GOVERNMENTS    OF    SWITZERLAND. 

forced  a  vote  in  favor  of  the  abolition  of  the  eight  monasteries 
of  the  Canton.  The  Diet  of  the  Confederation  was  thereupon 
asked  by  the  aggrieved  party  whether  it  would  permit  so  flagrant 
a  breach  of  the  Pact  of  1815.  It  was  forced  by  a  conflict  of 
interests  to  a  compromise,  agreeing  to  the  abolition  of  four  of 
Aargau's  eight  monasteries.  This  was  in  August,  1843.  The 
next  month  saw  the  formation  of  a  separate  League  (Sonderbund) 
by  the  seven  Roman  Catholic  Cantons,  Schwyz,  Uri,  Unterwal- 
den,  Luzern,  Freiburg,  Valais,  and  Zug.  The  deputies  of  these 
Cantons  were,  however,  slow  in  withdrawing  from  the  Diet,  and 
the  Diet  was  reluctant  to  come  to  open  strife  with  its  recalcitrant 
members.  Four  years  this  league  within  a  league  was  permitted 
to  continue  its  obstructive  agitation.  But  at  last,  in  November, 
1847,  war  came, —  a  sharp,  decisive  contest  of  only  eighteen  days' 
duration,  in  which  the  seceded  Cantons  were  overwhelmed  and 
forced  back  to  their  allegiance. 

The  New  Constitution.  —  Constitutional  revision  followed 
immediately.  The  Pact  of  1815  was  worn  out :  a  strong  and  pro- 
gressive constitution  had  become  a  necessity  which  not  even  the 
party  of  reaction  could  resist  or  gainsay.  By  the  Constitution  of 
1848  there  was  created,  out  of  the  old  discordant  Confederation 
of  States  (Staatenbund)  the  present  federal  State  (Bundesstaat) . 
That  Constitution,  as  modified  and  extended  by  the  impor- 
tant revision  of  1874,  is  the  present  Constitution  of  Swit- 
zerland. 

Character  of  the  Constitution.  —  The  federal  government 
thus  established  has  many  features  which  are  like,  as  well  as 
many  which  are  very  unlike,  the  familiar  features  of  our  own 
national  system.  It  has  had,  since  1874,  a  federal  Supreme 
Court,  which  is  in  many  important  fields  of  jurisdiction  the  high- 
est tribunal  of  the  land;  and  it  has  had  since  1848  a  Legislature 
consisting  of  two  branches,  or  Houses,  the  one  representative  of 
the  people,  the  other  representative  of  the  states  of  the  Confed- 
eration. The  popular  chamber  is  called  the  'National  Council' 
(der  Nationalrat),  the  federal  senate,  the  '  Council  of  States ' 
(der  Sttinderat).  The  former  represents  the  people  as  a  whole ; 
the  latter,  the  States  as  constituent  members  of  the  Confedera- 
tion. 


THE   GOVERNMENTS   OF   SWITZERLAND.  391 

Much  of  the  resemblance  of  these  arrangements  to  our  own  is  due 
to  conscious  imitation.  The  object  of  the  reformers  of  1848  and  1874  waf 
not,  however,  to  Americanize  their  government,  and  in  most  respects  it 
remains  distinctively  Swiss. 

Nationality  and  State  Sovereignty.  —  Much  as  such  in- 
stitutions resemble  our  own  federal  forms,  the  Constitution  of 
Switzerland  rests  upon  federal  foundations  such  as  our  own  gov- 
ernment had  during  the  first  half  century  of  its  existence  rather 
than  upon  national  conceptions  such  as  have  dominated  us  since 
the  war  between  the  States.  The  Swiss  Constitution  does  indeed 
expressly  speak  of  the  Swiss  nation,  declaring  that  "the  Swiss 
Confederacy  has  adopted  the  following  Constitution  with  a  view 
to  establishing  the  union  (Bund)  of  the  Confederates  and  to  main- 
taining and  furthering  the  unity,  the  power,  and  the  honor  of  the 
Swiss  nation  " :  and  not  even  the  war  between  the  States  put  the 
word  nation  into  our  Constitution.  But  the  Constitution  of 
Switzerland  also  contains  a  distinct  and  emphatic  assertion  of 
that  principle  of  divided  sovereignty  which  is  so  much  less  fa- 
miliar to  us  now  than  it  was  before  1861.  It  speaks  of  the  Con- 
federation as  formed  by  "  the  people  of  the  twenty -two  sovereign 
Cantons,"  and  it  explicitly  declares  that  "the  Cantons  are  sover- 
eign, so  far  as  their  sovereignty  is  not  limited  by  the  federal 
Constitution,  and  exercise  as  such  all  rights  which  are  not  con- 
ferred upon  the  federal  power  " ;  and  its  most  competent  inter- 
preters are  constrained  to  say  that  such  a  constitution  does  not 
erect  a  single  and  compacted  state  of  which  the  Cantons  are  only 
administrative  divisions,  but  a  federal  state,  the  units  of  whose 
membership  are  themselves  states,  possessed,  within  certain 
limits,  of  independent  and  supreme  power.  The  drift  both  of 
Switzerland's  past  history  and  present  purpose  is  unquestion- 
ably towards  complete  nationality;  but  her  present  Constitution 
was  a  compromise  between  the  advocates  and  the  opponents  of 
nationalization;  and  it  does  not  yet  embody  a  truly  national 
organization  or  power. 

Large  Constitutional  Grants.  —  At  the  same  time,  the 
grants  of  power  under  the  Swiss  Constitution  have  from  the  first 
been  both  larger  and  less  definite  than  those  contained  in  the 
Constitution  of  the  United  States.  It  contains  such  indefinite 


392  THE   GOVERNMENTS   OF   SWITZERLAND. 

grants  as  these :  that  the  federal  legislature  shall  have  power  to 
pass  "  laws  and  resolutions  concerning  those  subjects  which  the 
Confederacy  is  commissioned  by  the  federal  Constitution  to  act 
upon";  to  control  the  foreign  relations  of  the  Cantons;  to  guar- 
antee the  constitutions  and  territories  of  the  Cantons ;  to  provide 
for  the  internal  safety,  order,  and  peace  of  the  country ;  to  adopt 
any  measures  "  which  have  the  administration  of  the  federal  Con- 
stitution, the  guaranteeing  of  the  cantonal  constitutions,  or  the 
fulfilment  of  federal  duties  for  their  object " ;  and  to  effect  revi- 
sions of  the  federal  Constitution. 

It  adds  to  such  federal  powers  as  we  are  familiar  with 
the  authority  to  regulate  religious  bodies  and  monastic  orders, 
to  control  the  manufacture  and  sale  of  alcoholic  liquors,  to  estab- 
lish general  sanitary  regulations  in  the  case  of  certain  diseases, 
to  control  the  construction  and  operation  of  all  railroads,  to  regu- 
late labor  in  factories,  to  provide  for  the  compulsory  insurance 
of  workmen,  and  to  legislate  throughout  the  whole  field  of  com- 
mercial law.  The  federal  government  is  given,  besides,  a  large 
power  of  superintendence.  It  has  supervision  of  streams  and 
forests,  and  of  the  more  important  roads  and  bridges ;  it  has  the 
right  to  disapprove  of  and  annul  the ,  press  laws  of  the  several 
cantons,  and  their  regulations  with  regard  to  the  acquisition  of 
residence  and  the  franchise  in  the  communes;  and  it  exercises 
in  many  another  matter  a  general  oversight  and  guardianship. 

Guarantee  of  the  Cantonal  Constitutions.  —  The  Swiss  fed- 
eral Constitution  is  more  definite  in  guaranteeing  to  the  Cantons 
their  constitutions  than  our  federal  Constitution  is  in  guaranteeing 
to  the  States  "  a  republican  form  of  government."  The  guarantee 
is  made  to  include  the  freedom  of  the  people  and  their  legal  and 
constitutional  rights ;  the  exercise  of  those  rights  under  repre- 
sentative or  democratic  forms ;  and  the  revision  of  any  cantonal 
constitution  whenever  an  absolute  majority  of  the  citizens  of  the 
Canton  desire  a  revision. 

This  '  guarantee  '  is  not  used  or  understood  in  Switzerland  as  it  is  in  the 
United  States.  Here  the  sanction  and  support  of  the  federal  government 
is  taken  for  granted,  unless  the  constitutional  arrangements  of  a  State 
are  challenged  as  unrepublican.  In  Switzerland  it  is  expected  that  each 
Canton  shall  seek  the  explicit  sanction  or  guarantee  of  the  federal  govern- 
ment for  its  constitution,  and  even  for  each  amendment  as  added. 


THE   GOVERNMENTS   OF   SWITZERLAND.  393 


THE  CANTONAL  GOVERNMENTS. 

The  Cantonal  Constitutions  and  the  Federal  Constitution. 

—  So  deeply  is  Swiss  federal  organization  rooted  in  cantonal 
precedents,  that  an  understanding  of  the  government  of  the  Con- 
federation is  best  gained  by  studying  first  the  political  institu- 
tions of  the  Cantons.  At  almost  all  points  the  federal  government 
exhibits  likeness  to  the  governments  of  the  Cantons,  out  of  whose 
union  it  has  grown.  As  our  own  federal  Constitution  may  be 
said  to  generalize  and  apply  colonial  habit  and  experience,  so  the 
Swiss  Constitution  may  be  said  to  generalize  and  apply  cantonal 
habit  and  experience :  though  both  our  own  Constitution  and  that 
of  Switzerland  have  profited  largely  by  foreign  example  also. 

In  some  respects  the  Swiss  Constitution  is  more  conserva- 
tive —  or,  if  you  will,  less  advanced  —  than  the  Constitution  of  the 
United  States.  Those  who  have  fought  for  union  in  Switzerland 
have  had  even  greater  obstacles  to  overcome  than  have  stood  in 
the  way  of  the  advocates  of  a  strong  central  government  in  this 
country.  Differences  of  race,  of  language,  and  of  religion,  as 
well  as  stiffly  opposing  political  purposes,  have  offered  a  persist- 
ent resistance  to  the  strengthening  and  even  the  logical  develop- 
ment of  the  prerogatives  of  the  federal  power.  The  Constitution 
of  the  Confederation,  therefore,  bears  many  marks  of  compromise. 
It  gives  evidence  at  certain  points  of  incomplete  nationalization 
not  only,  but  even  of  imperfect  federalization.  Cantonal  insti- 
tutions are,  consequently,  upon  a  double  ground  entitled  to  be 
first  considered  in  a  study  of  the  governments  of  Switzerland. 
Both  their  self-assertive  vitality  and  their  direct  influence  upon 
federal  organization  make  them  the  central  subject  of  Swiss 
politics. 

Position  of  the  Legislative  Power.  —  The  development  of 
political  institutions  has  proceeded  in  the  Swiss  Cantons  rather 
according  to  the  logic  of  practical  democracy  than  according  to 
the  logic  of  the  schools.  The  Swiss  have  not,  for  one  thing, 
hesitated  to  ignore  in  practice  all  dogmas  concerning  the  separa- 
tion of  legislative,  executive,  and  judicial  functions.  I  say  'in 
practice';  for  in  theory  such  distinctions  are  observed.  The 


394  THE  GOVERNMENTS   OF   SWITZERLAND. 

constitutions  of  fully  half  the  Cantons  say  explicitly  that  legisla- 
tive, executive,  and  judicial  functions  shall  be  kept  fundamen- 
tally distinct;  but  in  the  practical  arrangements  actually  made 
the  line  of  demarcation  is  by  no  means  sharply  drawn.  The 
leading  principle  according  to  which  they  proceed  in  all  political 
arrangements  is,  that  in  every  department  of  affairs  the  people 
must,  either  immediately  or  through  representatives,  exercise  a 
direct,  positive,  effective  control.  They  do  not  hesitate,  there- 
fore, to  give  to  their  legislative  bodies  a  share  both  in  the  admin- 
istration and  in  the  interpretation  of  laws ;  and  these  bodies  are 
unquestionably  the  axes  of  cantonal  politics. 

A  Single  House.  —  A  very  great  variety  of  practice  marks 
the  organization  of  government  in  the  Cantons.  Each  Canton  has 
had  its  own  separate  history  and  has,  to  a  certain  extent,  worked 
out  its  own  individual  political  methods.  But  there  is  one  point 
of  perfect  uniformity,  —  the  Legislature  of  each  Canton  consists 
of  but  a  single  House.  The  two  Houses  of  the  federal  legisla- 
ture have  been  made  after  foreign,  not  after  Swiss,  models.  In 
Uri,  Upper  and  Lower  Unterwalden,  G-larus,  and  Appenzell 
Interior  and  Exterior  this  single  lawmaking  body  is  the  Lands- 
gemeinde,  the  free  assembly  of  all  the  qualified  voters,  the  folk- 
moot  ;  but  in  the  other  Cantons  the  legislative  assembly  is  repre- 
sentative. Representatives  are  elected  by  popular  vote  in  all 
the  Cantons,  and  in  ten  by  the  method  of  proportional  represen- 
tation. 

Elections  are  for  a  term  which  varies  from  two  years  to  five  in  the 
different  Cantons,  the  rule  being  a  term  of  from  three  to  four  years.  The 
number  of  representatives  bears  a  proportion  to  the  number  of  inhabitants 
which  also  varies  as  between  Canton  and  Canton.  In  Zug  there  is  one 
member  of  the  legislature  for  every  350  inhabitants  ;  in  Bern  one  to  every 
3000.  As  a  result  of  the  low  ratios,  the  cantonal  legislators  have  a  rela- 
tively large  membership.1 

In  most  of  the  Cantons  the  legislative  body  is  called  the  Great  Council 
(Grossraf) — the  executive  body  being  the  Lesser  Council  —  in  some  it  is 
called  the  Cantonal  Council  (Kantonsraf) . 

Functions  of  the  Cantonal  Legislatures.  —  The  functions 
of  these  councils  have  the  inclusiveness  characteristic  of  Swiss 

1  Brooks,  Government  and  Politics  of  Switzerland,  p.  313. 


THE   GOVERNMENTS   OF   SWITZERLAND.  395 

political  organization.  Not  only  are  they  entrusted  with  such 
legislative  power  as  the  people  are  willing  to  grant ;  they  also,  as 
a  rule,  select  many  of  the  administrative  officers  of  the  Canton, 
and  exercise,  after  such  election,  a  scrutiny  of  administrative 
affairs  which  penetrates  to  details  and  keeps  executive  action 
largely  within  their  control.  It  is  a  recognized  principle  of  can- 
tonal government,  indeed,  that  the-  executive  body  —  executive 
power,  as  we  shall  see,  being  vested  in  a  board  or  commission, 
not  in  an  individual  —  is  a  committee  of  the  representatives  of 
the  people,  —  a  committee  of  the  legislative  council.1  To  that 
council  they  are  responsible,  as  the  selectmen  of  a  New-England 
town  are  responsible  to  the  town-meeting  (page  341). l 

The  Executive  Power  is  collegiate  in  all  the  Cantons,  is 
exercised,  that  is,  not  by  a  single  individual  or  by  several  indi- 
viduals acting  independently  of  each  other,  but  by  a  commission. 
This  commission  is  variously  called  in  the  different  Cantons.  In 
some  it  is  known  as  the  "  Landammann  and  Council,"  in  others 
as  the  "  Estates-Commission "  (Standeskommission),  in  some  as 
the  "  Smaller  Council " ;  but  in  most  as  the  "  Administrative 
Council "  (Regierungsrat).  Its  term  of  office  varies  in  the  differ- 
ent Cantons  with  the  term  of  the  legislative  body,  with  which  it 
is  always  coincident;  but  the  custom  is  reelection,  so  that  the 
brief  tenure  does  not  in  practice  result  in  too  frequent  changes  in 
executive  personnel  The  members  of  the  executive  have  always 
in  the  mountain  Cantons  been  chosen  by  the  people  themselves ; 
in  the  others  they  were  formerly  elected  always  by  the  legislative 
council  —  whence  the  name,  "  smaller  council,"  which  they  bear 
in  some  Cantons.  Now,  however,  direct  election  by  the  people 
has  been  substituted  in  all  but  two  of  the  Cantons.  Whether 
elected  by  the  people  or  by  the  Great  Council,  however,  the 
Administrative  Council  remains,  in  function,  a  committee  of  the 
legislative  body.  Its  members  freely  take  part  in  the  business 
of  legislation  and  in  the  debates  of  the  Great  Council.  It  in  fact 
originates  most  of  the  measures  of  each  session,  and  is  looked  to 
for  guidance  in  every  matter  of  consequence.  It  does  not  resign 
if  outvoted  upon  its  proposals.  It  is,  on  the  contrary,  regarded  in 
most  of  the  Cantons  rather  as  a  business  head  than  as  a  body  of 

i  Orelli,  p.  99. 


396  THE   GOVERNMENTS    OF    SWITZERLAND. 

party  leaders,  and  its  membership  is  usually  made  up,  not  from 
one,  but  from  the  several  political  parties  of  the  Canton. 

The  Administrative  Council  usually  consists  of  from  five  to 
seven  members,  though  in  the  Cantons  of  Bern  and  Appenzell 
Interior  it  contains  nine,  and  in  Lower  Unterwalden,  eleven.  It 
has  proved  necessary  of  late  years  to  give  over  the  attempt  to 
act  in  all  matters  as  a  Board,  and  it  has  become  usual  to  divide 
the  work  of  the  Council  among  departments.  But  these  depart- 
ments are  under  the  general  direction  of  the  Council  as  a  whole, 
and  the  administration  of  a  canton  has  usually  a  very  real  cohe- 
rence and  an  intimate  coordination. 

The  People's  Control  over  Legislative  Action.  —  Although 
the  people  have  delegated  their  legislative  powers  to  representa- 
tive chambers  in  all  the  Cantons  except  those  which  still  retain 
their  primitive  Landsgemeinden,  they  have  nevertheless  kept  in 
their  own  hands  more  than  the  mere  right  to  elect  representatives. 
The  largest  of  the  Cantons  (Bern)  has  but  a  little  more  than  half 
a  million  inhabitants  ;  the  majority  of  the  Cantons  have  less  than 
one  hundred  thousand  apiece  ;  and  the  average  population,  taking 
big  and  little  Cantons  together,  is  only  about  one  hundred  and 
twenty  thousand.  Their  average  area  scarcely  reaches  six  hun- 
dred and  forty  square  miles.  The  people  of  such  communities 
stand,  as  it  were,  in  the  midst  of  affairs.  They  are  in  a  sense 
always  at  hand  to  judge  of  the  conduct  of  the  public  business. 
Their  feelings  and  their  interests  are  homogeneous,  and  there  is 
the  less  necessity  to  part  with  their  powers  -to  representatives. 
In  seven  of  the  German  Cantons  a  certain  number  of  citizens  (the 
number  varies  from  one  to  twelve  thousand)  can  demand  a  popu- 
lar vote  upon  the  question  whether  the  Great  Council  shall  be 
dissolved  or  not ;  and  if  the  vote  goes  in  the  affirmative  the 
chamber's  term  is  ended  and  a  new  election  takes  place  at  once. 
If  this  method  of  control  is  no  longer  used,  it  is  because  more 
effective  methods  have  been  substituted.  In  all  the  Cantons  the 
question  of  constitutional  revision  can  be  brought  to  popular 
vote  upon  petition,  and  the  revision,  if  undertaken,  may  go  any 
length  in  changing  or  reversing  the  processes  of  legislation. 

The  Initiative :  Imperative  Petition.  —  So  far  has  the 
apparent  logic  of  democracy  been  carried  in  Switzerland  that  the 


THE   GOVERNMENTS   OF   SWITZERLAND.  397 

people  exercise  in  several  ways  a  direct  part  in  lawmaking. 
The  right  of  petition,  which  is  recognized  in  every  country  where 
popular  rights  exist  at  all,  has  become  in  Switzerland  a  right  of 
initiative  in  legislation.  In  every  Canton  the  people  have  been 
granted  the  right  to  initiate  constitutional  reforms  by  petition ; 
and  in  all  except  Freiburg  the  same  right  has  been  established 
with  regard  to  the  revision  or  enactment  of  ordinary  laws.  In 
the  Confederation  petitions  signed  by  fifty  thousand  voters  have, 
since  1891,  been  imperative  in  respect  of  the  introduction  of  con- 
stitutional amendments.  In  the  case  of  ordinary  legislation, 
specific  laws  may  be  proposed  by  petition,  in  all  the  Cantons 
except  the  one  I  have  named;  the  legislature  must  submit  the 
law  proposed  to  the  popular  vote ;  and  its  adoption  at  the  polls 
puts  it  upon  the  statute  book. 

In  the  case  of  constitutional  amendments,  it  is  generally  pro- 
vided that  either  general  or  specific  changes  may  be  proposed : 
that  is,  that  the  changes  may  be  proposed  either  in  general  terms 
or  in  definitive  and  final  form,  ready  for  adoption.  If  the  pro- 
posal is  couched  only  in  general  terms,  the  legislature  may  either 
formulate  the  desired  amendment  at  once  and  submit  it  to  the 
people,  or,  if  it  disapprove  of  the  change  proposed,  it  may  first 
submit  the  general  question  to  the  vote  of  the  electors.  If,  in  the 
latter  event,  the  vote  be  in  the  affirmative,  the  legislature  must 
proceed  to  formulate  the  necessary  article  or  articles,  and  these 
must  be  submitted  in  their  definitive  shape  once  more  to  the 
popular  verdict.  If  the  petition  itself  embody  a  specific  change 
already  drawn  and  formulated,  the  amendment  must  go  in  that 
shape  to  the  vote,  and  its  adoption  makes  it  part  of  the  funda- 
mental law.  The  number  of  signatures  required  for  these  im- 
perative petitions  varies  with  the  size  of  the  Cantons.  Petitions 
demanding  a  change  in  the  fundamental  law  of  the  Confederation 
must  be  signed,  as  we  have  seen,  by  not  less  than  fifty  thousand 
voters. 

In  the  earlier  years  of  its  use,  the  constitutional  initiative  in 
the  Confederation  gave  rise  to  severe  criticism  through  the  adop- 
tion of  a  constitutional  amendment  which  aimed  a  blow  at  the 
Jews,  under  the  disguise  of  forbidding  the  slaughtering  of  ani- 
mals by  bleeding ;  but  since  1900  the  use  of  the  initiative  has 


398  THE   GOVERNMENTS   OF   SWITZERLAND. 

justified  itself.  "  The  measures  submitted  during  the  later  period 
were  moderate  and  progressive.  Those  which  failed  laid  an 
educational  foundation  for  reforms  which  are  likely  to  be  made 
in  the  not  distant  future,  while  the  two  successful  amendments 
represent  substantial  achievement." l  In  the  Cantons  the  expe- 
rience has  been  similar. 

The  Referendum.  —  In  every  Canton  of  the  Confedera- 
tion, except  Freiburg  only,  the  right  of  the  people  to  have  all  im- 
portant legislation  referred  to  them  for  confirmation  or  rejection 
has  now  been,  in  one  form  or  another,  established  by  law.  In  the 
smaller  Cantons,  which  have  had,  time  out  of  mind,  the  directest 
forms  of  democracy,  this  legislation  by  the  people  is  no  new  thing ; 
they  have  always  had  their  Landsgemeinden,  their  assemblies  of 
the  whole  people,  and  the  legislative  function  of  their  Councils 
has  long  been  only  the  duty  of  preparing  laws  for  the  considera- 
tion of  the  people.  Among  the  Cantons  which  have  representa- 
tive institutions,  on  the  other  hand,  the  Referendum  assumes  a 
different  form.  In  some  of  them  laws  must  be  submitted  to  the 
vote  of  the  electors  only  when  their  submission  is  demanded  by 
petition,  with  the  requisite  number  of  signatures.  This  is  called 
the  ' optional'  or  *  facultative 7  Referendum.  In  the  rest  of  the 
Cantons  (always  excepting  Catholic  and  conservative  Freiburg) 
substantially  all  substantive  changes  in  the  laws  must  be  sub- 
mitted to  the  electors,  and  the  action  of  their  legislatures  is 
periodically  voted  upon.  This  is  known  as  the  '  obligatory '  Ref- 
erendum.2 The  Federation  itself  has  had  the  optional  Referendum 
since  1874.  The  Referendum  is,  moreover,  everywhere  obligatory, 
whether  in  the  Confederation  or  in  the  several  Cantons,  in  the 
case  of  every  constitutional  change.  Administration  and  the 
ordinary  budget  are  usually  excepted  from  its  operation,  and  it  is 
made  to  apply,  within  the  field  of  ordinary  legislation,  only  to 
laws  of  a  general  character ;  but  in  most  of  the  Cantons  it  is  made 
to  cover  also  all  appropriations  of  an  unusual  character  or  above 
a  certain  sum ;  and  in  Valais  it  applies  only  to  certain  financial 
measures. 

1  Brooks,  Government  and  Politics  of  Switzerland,  p.  162. 

2  Eleven  Cantons  have  adopted  the  obligatory  referendum  for  ordinary 
legislation. 


THi:    <;<>\  KKNMKNTS    OF    SWIT/KK  LAND.  399 

Origin  of  the  Referendum.  —  The  term  Referendum  is  as 
old  as  the  sixteenth  century,  and  contains  a  reminiscence  of  the 
strictly  federal  beginnings  of  government  in  two  of  the  present 
Cantons  of  the  Confederation,  Graubtlnden,  namely,  and  Valais. 
These  Cantons  were  not  at  that  time  members  of  the  Confedera- 
tion, but  merely  districts  allied  with  it  (zugewandte  Orte).  Within 
themselves  they  constituted  very  loose  confederacies  of  Com- 
munes (in  Graubtinden  three,  in  Valais  twelve).  The  delegates 
whom  the  Communes  sent  to  the  federal  assembly  of  the  district 
had  to  report  every  question  of  importance  to  their  constituents 
and  crave  instruction  as  to  how  they  should  vote  upon  it.  This 
was  the  original  Referendum.  It  had  a  partial  counterpart  in  the 
Constitution  of  the  Confederation  down  to  the  formation  of  the 
present  forms  of  government  in  1848.  Before  that  date  the  mem- 
bers of  the  central  council  of  the  Confederation  acted  always 
under  instructions  from  their  respective  Cantons,  and  upon  ques- 
tions not  covered  by  their  instructions,  as  well  as  upon  all  matters 
of  unusual  importance,  it  was  their  duty  to  seek  special  direction 
from  their  home  governments.  They  were  said  to  be  commis- 
sioned ad  audiendum  et  referendum.  The  Referendum  as  now 
adopted  by  almost  all  the  Cantons  bears  the  radically  changed 
character  of  legislation  by  the  people.  Only  its  name  now  gives 
testimony  as  to  its  origin.1 

Its  Operation.  —  In  respect  of  constitutional  changes  the  use 
of  the  Referendum  is  not  peculiar  to  Switzerland.  In  that  field  its 
use  in  this  country  is  older  than  its  use  in  Switzerland.  And  in  its 
application  to  ordinary  laws  it  is  modern  even  in  Switzerland. 
Its  earliest  adoption  was  in  1831,  and  it  was  not  until  the  decade 
1864-1874  that  it  won  its  way  into  the  constitutional  practice  of 
the  greater  Cantons.  It  led  in  the  earlier  years  to  the  rejection 
of  radical  legislation,  even  to  the  rejection  of  radical  labor  legis- 
lation, such  as  the  ordinary  voter  might  be  expected  to  accept 
with  avidity.  The  Swiss  populations,  being  both  homogeneous 
and  deeply  conservative,  long  resisted  the  infection  of  modern 
radical  opinion,  but  in  recent  years  progress  toward  social  legis- 
lation has  been  marked.  They  have  shown  themselves  apt  to 
reject,  also,  complicated  measures  which  they  do  not  fully  com- 

i  Orelli,  p.  104. 


400  THE   GOVERNMENTS    OF    SWITZERLAND. 

prehend,  and  measures  involving  expense  which  seems  to  them 
unnecessary.  And  they  have  shown  themselves  not  a  little  in- 
different, too.  The  vote  upon  most  measures  submitted  to  the 
ballot  is  usually  very  light ;  there  is  not  much  popular  discus- 
sion ;  and  the  Referendum  by  no  means  creates  that  quick  interest 
in  affairs  which  its  originators  had  hoped  to  see  it  excite. 

Local  Government :  The  Districts.  —  Local  government  in 
the  Cantons  exhibits  a  twofold  division,  into  Districts  and  Com- 
munes. The  District  is  an  area  of  state  administration,  the 
Commune  an  area  of  local  self-government.  The  executive  func- 
tions of  the  District,  the  superintendency  of  police,  namely,  and 
the  carrying  into  effect  of  the  cantonal  laws,  are  entrusted,  as  a 
rule,  not  to  a  board,  but  to  a  single  officer, — a  Bezirksamman 
or  Regierungs-Statthalter,  —  who  is  either  elected  by  popular  vote 
in  the  District  or  appointed  by  one  of  the  central  cantonal  coun- 
cils, the  legislative  or  the  administrative.  Associated  with  this 
officer,  there  is  in  some  Cantons  a  District  or  county  Council 
chosen  by  vote  of  the  people. 

The  Gemeinde,  or  Commune,  enjoys  in  Switzerland  a  degree 
of  freedom  in  self-direction  which  is  possessed  by  similar  local 
organs  of  government  hardly  anywhere  else  in  Europe.  It  owns 
land  as  a  separate  corporation,  has  charge  of  the  police  of  its 
area,  of  the  relief  of  its  poor,  and  of  the  administration  of  its 
schools,  and  acts  in  the  direction  of  communal  affairs  through 
a  primary  assembly  of  all  its  freemen  which  strongly  reminds 
one  of  the  New-England  town-meeting  (page  241).  Besides  its 
activities  as  an  organ  of  self-government  in  the  direction  of 
strictly  local  affairs,  the  Commune  serves  also  as  an  organ  of 
cantonal  administration,  as  a  subdivision  of  the  District.  Thus 
it  is  an  electoral  district,  and  a  voting  district  in  the  case  of  a 
Referendum;  and  in  so  far  as  it  is  used  as  a  district  of  the  Canton 
it  is  subject  to  the  supervision  of  the  local  authorities  of  the  state. 

There  is  by  no  means  a  fixed  and  uniform  organization  in  the 
local  government  of  the  Cantons.  In  most  of  the  smaller  Com- 
munes the  people  themselves  act  directly  in  affairs,  in  township 
meeting,  while  in  the  large  cities  a  city  council  (Stadtrat)  is 
elected  by  popular  vote.  In  all  the  Communes,  as  in  the  Cantons, 
the  executive  power  is  vested  in  a  board  of  officials,  presided  over 


THE   GOVEKN.MI'N TS    <>F    SWITZERLAND.  401 

by  a  Hauptmann,  a  Gemeindeamman,  a  Syndic,  or  a  Maire.  This 
communal  or  municipal  council  is  chosen  by  the  freemen  in  assem- 
bly or  by  direct  popular  election.  The  Hauptmann  has  often 
separate  powers  of  his  own,  apart  from  and  independent  of  his 
colleagues  ;  but  in  most  matters  he  is  merely  the  presiding  officer 
of  the  administrative  council,  and  executive  action  is  collegiate. 

Citizenship  in  Switzerland  is  associated  very  closely  with  the 
Commune,  —  the  immediate  home-government  of  the  citizen, — 
the  primary  and  most  vital  organ  of  his  self-direction  in  public 
affairs.  The  Commune  is,  so  to  say,  the  central  political  family  in 
Switzerland  ;  it  is  to  it  that  the  primary  duties  of  the  citizen  are 
owed.  Every  citizen  of  a  Canton  is  by  the  Federal  Constitution 
a  Swiss  citizen.  Naturalization  is  regulated  by  cantonal  law  sub- 
ject only  to  approval  by  the  Federal  Council,  upon  the  advice  of 
its  Political  Department.  The  result  has  been  the  greatest  di- 
versity of  practices  in  regard  to  a  matter  of  vital  consequence  to 
the  whole  state,  and  the  full  rights  of  citizenship  can  be  conferred 
only  by  cantonal  and  communal  law. 

THE  FEDERAL  GOVERNMENT. 

The  Federal  Executive.  —  In  no  feature  of  the  federal 
organization  is  the  influence  of  cantonal  example  more  evident 
than  in  the  collegiate  character  of  the  Executive.  The  executive 
power  of  the  Confederation,  like  the  executive  power  of  each  Can- 
ton, is  vested  not  in  a  single  person,  as  under  monarchical  or 
presidential  government,  but  in  a  board  of  persons.  Nor  does 
Swiss  jealousy  of  a  too  concentrated  executive  authority  satisfy 
itself  with  thus  putting  that  authority  '  into  commission ' :  it  also 
limits  it  by  giving  to  the  legislative  branch  of  the  government, 
both  in  the  Cantons  and  in  the  federal  system,  an  authority  of 
correction  as  regards  executive  acts  such  as  no  other  country  has 
known.  The  share  of  the  legislative  branch  in  administrative 
affairs  is  smaller,  indeed,  under  the  Federal  Constitution  than 
under  the  laws  of  the  Cantons ;  but  it  is  large  even  in  the  federal 
system,  and  it  seems  inherent  in  Swiss  political  thought. 

The  executive  commission  of  the  Confederation  is  known 
as  the  Federal  Council  (Bundesrat).  It  consists  of  seven  mem- 


402  THE   GOVERNMENTS    OF    SWITZERLAND. 

bers  elected  for  a  term  of  three  years  by  the  two  houses  of  the 
federal  legislature  acting  together  in  joint  session  as  a  Federal 
Assembly  (Bmidesversammlung).  The  Constitution  forbids  the 
choice  of  two  of  its  seven  members  from  one  and  the  same  Can- 
ton: they  must  represent  seven  of  the  twenty-two  Cantons.  The 
Council  is  organized  under  a  President  and  Vice-Preside nt  chosen 
by  the  Federal  Assembly,  from  among  the  seven  councillors,  to 
serve  for  a  term  of  one  year,  the  Constitution  insisting  upon  the 
extreme  democratic  doctrine  of  rotation.  Neither  President  nor 
Vice-President  can  fill  the  same  office  for  two  consecutive  terms ; 
nor  can  the  President  be  immediately  nominated  to  the  office  of 
Vice-President  again  upon  the  expiration  of  his  term.  There  is 
nothing  to  prevent  the  Vice-President  succeeding  the  President, 
however ;  and  it  has  hitherto  been  the  uniform  practice  to  follow 
this  natural  and  proper  line  of  promotion. 

The  Federal  Assembly  may  elect  to  the  Council  any  Swiss  citizen 
who  is  eligible  to  either  Chamber  of  the  Legislature.  As  a  matter  of  fact, 
however,  they  almost  invariably  make  their  choice  from  amongst  the 
members  of  the  Chambers,  though  an  election  to  a  place  in  the  executive 
body  necessitates  a  resignation  of  the  legislative  function.  Bern  and 
Zurich  have  always  been  represented  in  the  Buridesrat,  and  are  consid- 
ered to  have  acquired  a  sort  of  prescriptive  right  to  places  on  it.  Vaud 
has  almost  always  had  a  member,  too  ;  and  Aargau  was  represented  con- 
tinuously till  1891. 

The  choice  of  the  Federal  Assembly  in  constituting  the  executive  has 
hitherto  been  admirably  conservative.  Some  of  the  more  prominent 
members  of  the  Council  have  been  retained  upon  it  by  repeated  reelection 
for  fifteen  or  sixteen  years  ;  one  has  served  for  thirty  years  ;  and  those 
who  have  left  its  membership  have  generally  done  so  of  their  own  accord, 
Only  twice,  indeed,  since  1848,  have  members  who  wished  reelection  been 
refused  it. 

The  Federal  Assembly  fills  all  vacancies  in  the  membership  of  the 
Council,  electing,  however,  only  for  the  unexpired  term. 

The  three-years  term  of  the  Council  Is  coincident  with  the  three-years 
term  of  the  National  Council,  the  popular  branch  of  the  Legislature.  At 
the  beginning  of  each  triennial  term  of  this  lower  House,  the  two  Houses 
come  together  as  a  Federal  Assembly  and  elect  (in  practice  reelect)  the 
Federal  Council.  If  the  National  Council  be  dissolved  before  the  close  of 
its  three-years  term,  the  election  of  the  Bundesrat  must  be  renewed  by  the 
two  Houses  upon  the  assembling  of  the  new  National  Council.  The  Bun- 
desrat is  thus  not,  strictly  speaking,  elected  for  three  years,  but  for  the 
term  of  the  National  Council,  whatever  that  may  turn  out  to  be. 


THE   GOVERN. M  KM  S    OF    SWITZERLAND.  403 

The  precedence  of  the  President  of  the  Council  is  a  merely 
formal  precedence:  he  is  in  no  sense  the  Chief  Executive.  He 
represents  the  Council  in  receiving  the  representatives  of  foreign 
powers ;  he  enjoys  a  somewhat  enhanced  dignity,  being  addressed 
in  diplomatic  intercourse  as  '  His  Excellency ' ;  and  he  receives  a 
little  larger  salary  than  his  colleagues  receive ;  but  he  is  in  all 
practical  matters  merely  the  Council's  chairman. 

The  Executive  and  the  Legislature.  —  The  members  of  the 
Federal  Council,  though  they  may  not  be  at  the  same  time  mem- 
bers of  either  House  of  the  Legislature,  may  attend  the  sessions 
of  either  House,  may  freely  take  part  in  debate,  and  may  intro- 
duce proposals  concerning  subjects  under  consideration:  may 
exercise  most  of  the  privileges  of  membership,  except  the  right  to 
vote.  They  are  expected,  indeed,  to  prepare  and  guide  the  busi- 
QCSS  of  the  Houses,  and  every  bill  is  submitted  to  them  for  an 
opinion  before  its  passage.  They  thus  to  a  certain  extent  occupy 
a  position  resembling  that  which  a  French  or  English  ministry 
occupy ;  but  there  is  this  all-important  difference :  the  English  or 
French  ministers  are  subject  to  <  parliamentary  responsibility,'  — 
must  resign,  that  is,  whenever  any  important  measure  which  they 
favor  is  defeated ;  whereas  the  Swiss  ministers  are  subject  to  no 
such  responsibility.  Defeat  in  the  Legislature  does  not  at  all 
affect  their  tenure.  They  hold  office  for  a  term  of  years,  not  for 
a  term  of  legislative  success ;  and  they  are  the  servants  of  the 
Houses,  not  their  leaders.  They  have  habitually  been  chosen 
from  both  the  chief  parties  in  the  Confederation,  and  since  1891 
a  third  political  group  has  been  represented  among  them.  They 
are  not  expected  to  speak  the  same  opinions  even  on  the  floor 
of  the  Houses.  But  they  are  expected  to  act  in  harmony  in  all 
business,  and  to  mediate  between  extreme  views  in  matters  of 
deliberation. 

At  the  outbreak  of  the  war  in  1914  the  Federal  Assembly 
conferred  by  resolution  unlimited  power  upon  the  Council  "to 
take  all  measures  necessary  to  the  security,  integrity,  and  neu- 
trality of  Switzerland,  and  to  protect  the  credit  and  economic 
interests  of  the  country,  especially  including  the  assurance  of  its 
food  supply.  For  this  purpose  the  Federal  Council  shall  possess 
unlimited  credit  to  meet  expenses.  It  is  especially  authorized 


404  THE   GOVERNMENTS   OF   SWITZERLAND. 

to  conclude  all  necessary  loans.  The  Federal  Council  shall  ac- 
count to  the  Federal  Assembly  at  its  next  session  with  regard  to 
its  employment  of  the  unlimited  powers  hereby  conferred  upon 
it."  l  It  is  doubtful  if  any  permanent  change  in  the  relations  be- 
tween the  executive  and  the  legislature  will  be  produced  by  this 
emergency  measure.  The  jealousy  with  which  the  two  Houses 
have  regarded  the  exercise  of  the  powers  thereby  conferred 
would  indicate  a  return  to  former  conditions  with  the  return 
of  peace. 

The  Executive  Departments.  —  The  Council  acts  as  a  body 
of  Ministers.  It  was  the  purpose  of  the  Constitution  that  all 
executive  business  should  be  handled  by  the  Council  as  a  whole, 
but  of  course  such  collegiate  action  has  proved  practically  im- 
possible :  it  has  been  necessary  to  divide  the  work  among  seven 
Departments.  Each  member  of  the  Council  presides  over  a  De- 
partment, conducting  it  much  as  an  ordinary  minister  would  under 
a  Cabinet  system,  though  there  is  a  somewhat  closer  union  of  the 
several  Departments  than  characterizes  other  systems,  and  a 
greater  degree  of  control  by  the  several  ministers  over  such 
details  of  administration  as  the  'permanent7  subordinates  of 
Cabinet  ministers  generally  manage,  by  virtue  of  possession,  to 
keep  in  their  own  hands,  to  the  restraint  and  government  of  tran- 
sient political  chiefs.  All  important  decisions  emanate  from  the 
Council  as  a  whole ;  and,  so  far  as  is  practicable,  the  collegiate 
action  contemplated  by  the  Constitution  is  adopted. 

The  seven  Departments  are  (1)  Political,  including  Foreign  Affairs, 
(2)  Justice  and  Police,  (3)  Interior,  (4)  War,  (5)  Finance  and  Imposts, 
(6)  National  Economy,  and  (7)  Posts  and  Railways.  The  department 
of  Foreign  Affairs  is  associated  with  the  presidency.  The  arrangement  of 
administrative  business  in  Departments  is  effected  in  Switzerland,  as  in 
France  and  Germany,  by  executive  decree,  and  not  by  legislative  enact- 
ment, as  in  the  United  States. 

It  is  considered  the  capital  defect  of  this  collegiate  organization  of 
the  Swiss  executive,  combined  as  it  is  with  the  somewhat  antagonistic 
arrangement  of  a  division  of  executive  business  among  Departments,  that 
it  compels  the  members  of  the  Council  to  exercise  at  one  and  the  same 

i  Bundessbeschluss  of  August  3,  1914,  A.  S.  XXX,  347,  quoted  in  Brooks, 
p.  114. 


THE   GOVERNMENTS    OF    SWITZERLAND.  405 

time  two  largely  inconsistent  functions.  They  are  real,  not  simply  nomi- 
nal, heads  of  Departments,  and  are  obliged  as  such  to  give  their  time  and 
attention  to  the  routine,  the  detail,  and  the  technical  niceties  of  adminis- 
tration ;  and  yet  as  a  body  they  are  expected  to  impart  to  the  administra- 
tion as  a  whole  that  uniformity,  breadth,  and  flexibility  of  policy  that  can 
be  imparted  only  by  those  who  stand  aloof  from  detail  and  routine  and 
command  the  wider  views  of  general  expediency.  They  are  called  to  be 
both  technical  officials  and  political  guides.  It  has  been  suggested  by 
*  thoughtful  Swiss  publicists  that  it  would  be  vastly  better  to  give  the  De- 
partments permanent  heads  and  leave  to  a  board  of  ministers  such  as  the 
present  Council  only  a  general  oversight.  t  Political  and  administrative 
functions  require  different  aptitudes,  must  be  approached  from  very  differ- 
ent points  of  view,  and  ought  seldom  to  be  united  in  the  same  persons. 

Mixed  Functions  of  the  Executive.  —  Swiss  law,  as  I  have 
said,  makes  no  very  careful  distinction  between  executive,  legis- 
lative, and  judicial  functions.  Popular  jealousy  of  executive 
power  has  resulted,  alike  in  the  cantonal  systems  and  in  the  sys- 
tem of  the  Confederation,  in  the  vesting  of  many  executive  func- 
tions either  wholly  or  in  part  in  the  lawmaking  bodies,  and  a 
very  singular  confusion  between  executive  and  judicial  functions 
has  resulted  in  the  possession  by  both  the  executive  and  the  legis- 
lative bodies  of  prerogatives  which  should,  on  any  strict  classifi- 
cation, belong  only  to  regularly  constituted  courts  of  law.  It  is, 
consequently,  somewhat  difficult  to  get  a  clear  summary  view  of 
the  role  played  in  Swiss  federal  affairs  by  the  central  executive 
Council.  Its  duties  give  it  a  touch  both  of  legislative  and  of 
judicial  quality. 

(1)  It  stands  closely  connected  with  the  Legislature 
because  of  its  part  in  shaping  legislation.  The  Council  both  origi- 
nates proposals  in  the  Houses  and  gives  its  opinion  upon  pro- 
posals referred  to  it,  either  by  the  Houses  or  by  the  Cantons.  It 
renders  annual  reports  to  the  Houses  concerning  its  conduct  of 
administration  and  the  condition  of  the  Confederation,  which  give 
it  opportunity  to  urge  upon  them  necessary  measures  of  reform  or 
amelioration ;  and  which,  being  freely  debated,  give  the  members 
of  the  Houses,  also,  an  opportunity  to  press  their  own  criticisms 
and  suggestions  with  reference  to  the  conduct  of  the  administra- 
tion. It  presents  the  budget  of  the  Confederation  also  to  the 
Houses  and  leads  in  its  debates  of  financial  legislation.  It  is,  in 


406  THE    GOVERNMENTS    OF    SWITZERLAND. 

brief,  the  intimate  servant  and  in  part  the  authoritative  guide  of 
the  Legislature,  both  taking  and  giving  advice.  The  Houses  may 
reverse  whatever  action,  of  the  Executive  they  please,  even  though 
it  be  merely  administrative  in  character  ;  but  they  usually  suggest, 
they  do  not  often  condemn  action  already  taken. 

(2)  In  the  exercise  of  several  of  its  most  important  duties  the 
action  of  the  Council  is  essentially  judicial.  It  is  empowered  to 
examine  the  agreements  made  by  Cantons  among  themselves  or 
with  foreign  governments  and  to  judge  of  their  conformity  with 
federal  constitutional  law,  withholding  its  approval  at  its  dis- 
cretion. In  like  manner  there  are  other  cantonal  laws  and 
ordinances  whose  validity  is  made  dependent  upon  its  approval ; 
and  until  1893  to  a  very  limited  extent,  a  jurisdiction  like  that 
entrusted  to  the  Federal  Court  in  hearing  complaints  concerning 
breaches  of  federal  law  was  given  it.  It  has  also  authoritative 
oversight  of  the  administration  of  federal  law  by  the  cantonal 
officials.  There  are  not  many  federal  officials ;  federal  law  is  for 
the  most  part  executed  by  local  officers,  the  Federal  Council 
supervising. 

Here  are  some  of  the  topics  touching  which  the  authoritative 
opinion  of  the  Council  may  be  taken  :  cantonal  school  affairs  ;  freedom  of 
trade  and  commerce,  and  the  interpretation  of  contracts  with  foreign 
states  which  concern  trade  and  customs-levies,  patent  rights,  rights  of  set- 
tlement, freedom  from  military  service,  free  passage,  etc. ;  rights  of  settle- 
ment within  the  Cantons  ;  freedom  of  belief  ;  validity  of  cantonal  elections, 
Totes,  etc. ;  gratuitous  equipment  of  the  militia.1 

(3)  Its  strictly  executive  functions  are,  however,  its  most 
prominent  and  important  functions.  It  appoints  all  officers 
whose  selection  is  not  otherwise  specially  provided  for  by  law ; 
it  of  course  directs  the  whole  executive  action  of  the  government, 
controlling  federal  finance,  and  caring  for  all  federal  interests; 
equally  of  course,  it  manages  the  foreign  affairs  of  the  Confedera- 
tion. Besides  these  usual  executive  and  administrative  functions, 
it  exercises,  however,  others  less  common.  It  is  the  instru- 
ment of  the  Constitution  in  making  good  to  the  Cantons  the 
federal  guarantee  of  their  constitutions.  It  executes  the  judg- 
ments of  the  Federal  Court,  and  also  all  agreements  or  decisions 


THE    GOYKK.VMKNTS    OF    S\\  l'I  ZKRLAND.  407 

of  arbitrators  concerning  matters  in  dispute  between  Cantons. 
In  cases  of  necessity  it  may  call  out  and  itself  direct  the  move- 
ments of  such  cantonal  troops  as  are  needed  to  meet  any  sudden 
danger,  provided  the  Legislature  is  not  in  session  fJb  command  such 
measures,  and  provided  the  call  is  for  not  more  than  two  thousand 
men  for  a  service  of  more  than  three  weeks.  If  more  men  or 
longer  service  seem  necessary,  the  Legislature  must  be  called  at 
once  and  its  sanction  obtained.  This  power  of  the  Council  to  call 
out  troops  to  meet  a  pressing  peril  of  war  or  riotous  disorder  is  a 
logical  part  of  the  duty  imposed  upon  it  of  "guarding  the  external 
and  internal  safety  and  order  of  the  Confederation,  a  duty  which 
embraces  the  general  police  function  of  keeping  the  peace. 

The  Army.  —  Compulsory  military  service  is  required  by  the  con- 
stitution of  1848  which  at  the  same  time  forbade  the  federation  to  maintain 
a  standing  army.  The  consequence  was  that  the  Cantons  were  left  in 
charge  of  military  administration.  The  constitution  of  1874  gave  the 
federation  a  much  enlarged  control  over  the  army,  though  the  prohibition 
against  the  maintenance  of  a  standing  army  was  retained.  The  law  of 
1907,  passed  upon  referendum  by  a  large  popular  vote,  is  the  basis  of  the 
army  organization.  Liability  to  military  service  extends  from  the  twen- 
tieth to  the  forty-eighth  year,  but  the  periods  of  service  are  short. 

Detail  of  Federal  Supervision.  —  The  federal  government  is 
directed  by  the  Constitution  to  see  to  it  that  the  Cantons  provide  free, 
compulsory,  non-sectarian  education  for  their  people,  and  that  the  politi- 
cal rights  and  liberties  of  individuals  are  respected  by  cantonal  law.  It  is 
likewise  authorized,  in  case  of  internal  disturbances,  to  intervene  to  pre- 
serve the  public  order  upon  its  own  initiative,  whenever  the  cantonal 
authorities  are  unable  to  call  upon  it  for  assistance.  It  has  been  held, 
moreover,  that  it  may  exercise  many  of  these  extensive  powers  of  over- 
sight and  direction  upon  the  initiative  of  individuals  whose  rights  are 
affected,  as  well  as  upon  the  initiative  of  the  cantonal  governments  ;  and 
its  powers  of  superintendence  and  intervention  have  shown  a  marked  ten- 
dency to  grow.  The  people  have  come  to  feel  the  Cantons  in  many  things 
too  small  to  do  without  the  aid  and  countenance  of  the  federal  power. 

Execution  of  Federal  Law.  —  Although  the  supervisory  powers 
of  the  federal  government  are  very  great,  however,  its  active  administra- 
tive duties  are  not  many.  The  federal  laws  are  for  the  most  part  executed 
by  cantonal  officials,  under  the  superintendence  of  the  Federal  Council. 
In  all  that  concerns  foreign  affairs  the  federal  government  acts  for  itself 
and  through  its  own  officials  ;  it  directly  administers  the  custom  house,  too, 
and  the  postal  and  telegraph  systems  of  the  country.  It  has  charge  of  its 
own  arsenals  ;  and  it  is  entrusted  with  the  management  of  the  government 


408  THE   GOVERNMENTS    OF    SWITZERLAND. 

alcohol  monopoly  and  of  the  national  polytechnic  school.  But  in  almost 
all  other  matters  it  is  served  by  cantonal  officials.  Even  the  Federal 
Court  has  no  executive  officers  of  its  own. 

Appeal  in  Judicial  Cases.  —  Following  the  example  of  the 
cantonal  constitutions,  which  provide  for  a  very  absolute  depend- 
ence of  the  executive  upon  the  representatives  of  the  people  and 
freely  neglect,  in  practice,  the  careful  differentiation  of  legislative 
from  administrative  functions,  the  Federal  Constitution  of  1848 
allowed  an  appeal  in  all  cases  from  the  Federal  Council  to  the 
Federal  Assembly  (Bundesversammlung).  The  constitutional  re- 
vision of  1874,  which  had  as  one  of  its  chief  objects  the  develop- 
ment and  strengthening  of  the  judiciary  of  the  Confederation, 
transferred  many  appeals  to  a  Federal  Court,  but  it  left  the 
action  of  the  Federal  Council  no  less  subject  to  the  Assembly 
than  before,  and  it  did  not  exclude  the  Legislature  from  judicial 
functions.  It  was,  indeed,  provided  that  the  Federal  Court, 
rather  than  the  Assembly,  should  in  most  cases  hear  appeals 
from  the  Federal  Council ;  but  it  was  also  arranged  that  certain 
1  administrative '  cases  might  be  reserved  to  the  Assembly  by 
special  legislative  action.  Eeligious  and  '  confessional '  questions 
have,  accordingly,  been  retained  by  the  Legislature  —  questions 
which  would  seem  to  be  as  far  as  possible  removed  from  the 
character  of  administrative  matters. 

It  seems  to  have  been  the  conscious  purpose  of  the  more  advanced 
reformers  in  1874  to  bring  the  Federal  Court  as  near  as  possible  in  char- 
acter and  functions  to  the  Supreme  Court  of  the  United  States  ;  but  they 
were  able  to  realize  their  purpose  only  in  part.  The  most  important  pre- 
rogative of  our  own  Court,  its  powers,  namely,  of  constitutional  interpre- 
tation, was  denied  the  Federal  Court  in  Switzerland.  Most  constitutional 
questions  are  decided  by  the  Legislature,  except  when  specially  delegated 
to  the  Court  by  legislation.  The  chief  questions  of  this  nature  now  taken 
cognizance  of  by  the  Court  are  disputes  as  to  constitutional  rights  between 
cantonal  and  federal  authorities. 

The  Federal  Chancellor.  —  The  office  of  Federal  Chancellor  is 
worth  noting  as  an  inheritance  of  the  present  from  the  older  Confedera- 
tion, in  whose  days  of  incomplete  federalization  the  Chancellor  typified 
the  unity  of  the  Cantons.  The  Chancellor  is  elected  by  the  Federal 
Assembly  at  the  same  time  and  for  the  same  term  (three  years)  as  the 
Federal  Council.  He  is  chief  clerk  of  both  Houses  of  the  Federal  Assem- 
bly, is  keeper  of  all  the  federal  records,  and  exercises  a  semi-executive 


THE    GOVERNMENTS    OF    SWITZERLAND.  409 

function  as  preserver  of  diplomatic  forms  and  usages.  A  Vice-Chancellor 
acts  under  the  Chancellor  as  Secretary  of  the  Council  of  States  (Stande- 
rai),  the  Chancellor  acting  chiefly  for  the  popular  chamber. 

The  Federal  Legislature.  —  Properly  speaking,  the  legis- 
lative powers  of  the  Confederation  are  vested  in  the  Federal 
Assembly  (Bundesversammlung)  ;  but  that  Assembly  consists  of 
two  distinct  Houses,  the  National  Council  (Nationalrat)  and  the 
Council  of  States  (Stdnderat) ;  and  the  Houses  act  separately 
in  all  strictly  legislative-  matters,  coming  together  as  a  single 
Assembly  only  for  the  exercise  of  certain  electoral  and  judicial 
functions.  The  two  Houses  stand  in  all  respects  upon  an  equal 
footing :  there  is  no  difference  of  function  between  them.  The 
originative  work  of  each  session  —  that  is,  the  first  handling  of 
measures  —  is  divided  between  them  by  a  conference  of  their 
Presidents  at  the  beginning  of  the  session.  The  Constitution 
requires  that  at  least  one  session  be  held  annually :  as  a  matter 
of  practice  there  are  usually  two  sessions  of  about  four  weeks 
each  every  year,  one  beginning  in  June,  the  other  in  December, 
and  a  shorter  extra  session  in  March.  Special  sessions  may  be 
called  either  by  resolution  of  the  Federal  Council  or  upon  the 
demand  of  rive  Cantons  or  of  one-fourth  of  the  members  of  the 
National  Council.  An  absolute  majority  of  its  members  consti- 
tutes a  quorum  in  each  House. 

Composition  of  the  Houses :  I.  The  National  Council.  — 
The  popular  chamber  of  the  Assembly  consists  of  one  hundred 
and  eighty-nine  members  chosen  from  forty-nine  federal  electoral 
districts  ( Wahl-Kreise)  in  the  proportion  of  one  representative 
for  every  20,000  inhabitants.  The  federal  electoral  districts  can- 
not, however,  cross  cantonal  boundary  lines  and  include  territory 
in  more  than  one  Canton.  If,  therefore,  in  the  apportionment  of 
representatives  among  the  Cantons,  the  division  of  the  number 
of  inhabitants  of  any  Canton  by  the  number  20,000  shows  a 
balance  of  10,000,  or  more,  that  balance  counts  as  20,000,  and 
entitles  to  an  additional  representative.  Reapportionments  are 
made  from  time  to  time  to  meet  changes  in  the  number  of 
inhabitants  as  shown  by  decennial  censuses.  If  any  Canton 
have  less  than  20,000  inhabitants,  it  is,  nevertheless,  entitled 
to  a  representative, 


410  THE   GOVERNMENTS    OF    SWITZERLAND. 

There  are  now  six  single- member  Cantons.  Bern  has  thirty-two  repre- 
sentatives, and  Zurich,  twenty-five,  and  Vaud  has  sixteen. 

In  those  electoral  districts  which  send  more  than  one  representative, 
candidates  are  voted  for  upon  a  general  ticket,  each  voter  being  en- 
titled to  vote  for  as  many  representatives  as  the  district  returns.  It 
requires  an  absolute  majority  to  elect,  and  if  no  one  secures  a  majority 
at  the  first  election,  a  second  is  held  in  which  a  plurality  suffices. 

Every  Swiss  twenty  years  of  age  who  is  not  a  clergyman  and  who 
is  qualified  to  vote  by  the  law  of  his  Canton  may  vote  for  mem- 
bers of  the  National  Council.  The  term  of  the  National  Council 
is  three  years.  Elections  take  place  always  in  October,  on  the  same 
day  throughout  the  country,  —  and  that  day  is  always  a  Sunday. 

It  is  upon  the  assembling  of  each  new  National  Council  that  the 
election  of  the  Federal  Council  takes  place  (pages  402,  403).  The  three- 
years  term  of  the  executive  Council  is  thus  made  to  extend  from  the  begin- 
ning of  the  first  session  of  one  National  Council  to  the  beginning  of  the 
first  session  of  the  next. 

The  National  Council  elects  its  own  officers ;  but  in  selecting  its 
President  and  Vice-President  it  is  bound  by  a  rule  similar  to  that  which 
limits  the  yearly  choice  of  a  President  of  the  Confederation.  The  Presi- 
dent or  Vice-President  of  one  session  cannot  be  reflected  for  the  session 
next  following.  For  the  officers  of  the  National  Assembly,  like  the  officers 
of  most  European  law-making  bodies,  are  elected  eveiy  session  instead  of 
for  the  whole  term  of  the  body,  as  in  our  House  of  Representatives  and 
the  English  House  of  Commons. 

II.  The  Council  of  States  (Standerat)  is  composed  of 
forty-four  members :  two  from  each  of  the  twenty-two  Cantons. 
It  would  thus  seem  to  resemble  very  closely  in  its  composition 
our  own  federal  Senate  and  to  represent  distinctively  the  federal 
feature  of  the  union  between  the  Cantons.  In  fact,  however,  it 
has  no  such  clearly  denned  character :  for  the  mode  in  which  its 
members  shall  be  elected,  the  qualifications  which  they  shall 
possess,  the  length  of  time  which  they  shall  serve,  the  salary 
which  they  shall  receive,  and  the  relations  they  shall  bear  to 
those  whom  they  represent,  in  brief,  every  element  of  their 
character  as  representatives,  is  left  to  the  determination  of  the 
Cantons  themselves,  and  the  greatest  variety  of  provisions  con- 
sequently prevails.  From  some  Cantons  the  members  are  sent 
for  one  year  only  ;  by  some  for  three ;  by  others  for  four ;  by  still 
others  for  two.  In  most  of  the  Cantons  they  are  elected  by 


THE  GOVERNMENTS   OF   SWITZERLAND.  411 

popular  vote,  as  the  members  of  the  National  Council  are;  in 
seven  Cantons  they  are  elected  by  the  legislative  body  of  the 
Canton.1  Differing,  thus,  from  the  National  Council,  as  regards 
at  least  very  many  of  its  members,  only  in  the  fact  that  every 
Canton  sends  the  same  number  as  each  of  the  others  and  chooses 
the  term  for  which  they  shall  be  elected,  the  Council  of  States  can 
hardly  be  called  the  federal  chamber  :  neither  is  it  merely  a  second 
chamber.  Its  position  is  anomalous  and  obviously  transitional. 

694.  The  Council  of  States  elects  its  own  President  and  Vice-President, 
but  subject  to  the  restriction  that  neither  President  nor  Vice-President 
can  be  chosen  at  any  session  from  the  Canton  from  which  the  President 
for  the  immediately  preceding  session  was  taken,  and  that  the  office  of 
Vice-President  cannot  be  filled  during  two  successive  regular  sessions  by 
a  member  from  the  same  Canton. 

695.  The  Cantons,  upon  enumeration,  number,  not  twenty-two,  but 
twenty-five,  because  three  of  them  have  been  divided  into  4  half -can  tons,' 
namely,  Unterwalden,  Basel,  and  Appenzell.    The  half-cantons  send  each 
one  member  to  the  Council  of  States.     The  following  is  a  list  of  the  Can- 
tons :  Zurich,  Berne,  Luzern,  Uri,  Schwyz,  Obwalden,  Nidwalden,  Glarus, 
Zug,  Freiburg,  Solothurn,  Baselstadt,   Baselland,   Schauffhausen,  Outer 
Appenzeil,  Inner  Appenzell,  St.  Gallen,  Graubtinden,  Aargau,  Thurgau, 
Ticino,  Vaud,  Valais,  Neuchatel,  Geneva. 

696.  Functions  of  the  Houses.  —  It  may  be  said,  in  general 
terms,  that  its  Legislature  is  the  supreme,  the  directing  organ  of 
the  Confederation.  It  is  difficult,  therefore,  to  classify  the  func- 
tions which  the  Houses  exercise,  because  they  extend  into  every 
field  of  government;  but  the  following  may  serve  as  a  distinct 
arrangement  of  them:  1.  They  exercise  the  sovereignty  of  the 
Confederation  in  its  dealings  with  foreign  states,  controlling  all 
alliances  or  treaties  with  foreign  powers,  determining  questions 
of  peace  and  war,  passing  all  enactments  concerning  the  federal 
army,  and  taking  the  necessary  measures  for  maintaining  the 
neutrality  and  external  safety  of  Switzerland.  2.  They  maintain 
the  authority  of  the  Confederation  as  against  the  Cantons,  taking 
care  to  pass  all  the  measures  necessary  for  preserving  internal 
safety  and  order  and  for  fulfilling  the  federal  guarantee  of  the 
cantonal  constitutions,  and  deciding,  upon  appeal  from  the  Fed- 

1  They  are  Bern,  Freiburg,  St.  Gallen,  Aargau,  Vaud,  Valais,  and  Neu- 
chatel. 


412  THE   GOVERNMENTS   OF   SWITZERLAND. 

eral  Council,  the  validity  of  agreements  between  the  Cantons  or 
between  a  Canton  and  a  foreign  power.  3.  They  exercise  the 
general  legislative  powers  of  the  Confederation,  providing  for 
the  carrying  out  of  the  Federal  Constitution  and  for  the  fulfil- 
ment of  all  federal  obligations.  4.  They  pass  upon  the  federal 
budget  and  control  the  federal  finances.  5.  They  organize  the 
federal  service,  providing  for  the  creation  of  all  necessary  depart- 
ments or  offices  and  for  the  appointment  and  pay  of  all  federal 
officers.  6.  They  oversee  federal  administrative  and  judicial 
action,  hearing  and  acting  upon  complaints  against  the  deci- 
sions of  the  Federal  Council  in  contested  administrative  cases. 
7.  With  the  concurrence  of  the  people,  they  revise  the  Federal 
Constitution. 

Legislative  Procedure.—  Each  House  is  served  in  the  conduct 
of  its  business  by  a  President,  a  Vice-President,  and  four  Tellers.  These 
six  officers  constitute  a  'Bureau,'  whose  duty  it  is  not  only  to  count  the 
votes  upon  a  division,  but  also  to  look  after  absentees,  and  to  appoint  such 
committees  as  the  chambers  do  not  themselves  choose  to  elect.  Much  of 
the  business  introduced  is  referred  to  committees  for  detailed  considera- 
tion ;  but  the  Federal  Council  is  the  grand  committee.  All  important 
legislation  either  comes  from  it  or  goes  to  it  for  final  formulation,  and  its 
part  is  generally  a  guiding  part  in  debate. 

Kevision  of  the  Constitution.  —  When  the  two  Houses  can 
agree  concerning  a  revision  of  the  Constitution,  it  is  effected  by 
the  ordinary  processes  and  under  the  ordinary  rules  of  legislation, 
though  it  is  followed  by  an  obligatory  Referendum  to  the  people. 
But  a  revision  may  also  be  otherwise  accomplished.  If  one 
House  demands  particular  changes  and  the  other  House  refuses 
to  assent,  or  if  50,000  qualified  voters  call  for  a  revision  by  peti- 
tion, the  question  whether  or  not  a  revision  shall  be  undertaken 
must  be  submitted  to  popular -vote;  and  if  there  be  a  majority  of 
the  whole  of  such  popular  vote  in  the  affirmative,  new  Houses 
must  be  elected  and  the  revision  proceeded  with.  In  every  case 
the  amendments  adopted  by  the  Houses  must  be  voted  upon  by 
the  people  and  must  be  accepted  by  a  majority  of  the  people  and 
by  a  majority  of  the  Cantons  also  in  order  to  go  into  force.  In 
reckoning  up  the  votes  by  Cantons,  on  such  occasions,  the  vote 
of  a  half-canton  counts  as  half  a  vote. 


THE   GOVERNMENTS   OF   SWITZERLAND.  413 

The  Federal  Referendum.  —  "Federal  laws,  as  well  as 
generally  binding  federal  resolutions,  which  are  not  of  a  pressing 
nature,  shall  be  laid  before  the  people  for  their  acceptance  or 
rejection  upon  the  demand  of  30,000  qualified  Swiss  citizens  or 
of  eight  cantons."  Such  is  the  command  of  Article  89  of  the 
Federal  Constitution  which  establishes  for  the  Confederation  the 
1  facultative  '  or  *  optional '  Referendum  (page  398). 

The  whole  detail  of  the  exercise  of  the  Referendum  is  regulated 
by  federal  legislation.  A  period  of  ninety  days,  running  from  the  date  of 
the  publication  of  the  law,  is  set  within  which  the  demand  for  a  popular 
vote  must  be  made.  Copies  of  all  federal  laws  which  are  subject  to  Ref- 
erendum are  sent  to  the  authorities  of  each  Canton,  and  by  them  pub- 
lished in  the  Communes.  For  the  Communes  are  constituted  the  districts 
in  which  the  popular  demand  is  to  be  made  up.  That  demand  must 
be  made  by  written  petition  addressed  to  the  Federal  Council ;  all  signa- 
tures must  be  autographic  ;  and  the  chief  officer  of  the  Commune  must 
attest  the  right  of  each  signer  to  vote.  Demands  from  Cantons  for  the 
Referendum  are  made  through  the  cantonal  councils,  subject  to  the  right 
of  the  people,  under  the  provisions  of  the  cantonal  Referendum,  to  reverse 
the  action.  In  case  it  appears  that  30,000  voters  or  eight  Cantons  demand 
Referendum,  the  Federal  Council  must  set  a  day  for  the  popular  vote  ; 
a  day  which  must  be  at  least  four  weeks  later  than  the  resolution  which 
appoints  it. 

Functions  of  the  Federal  Assembly.  —  The  functions  which 
the  Houses  exercise  in  joint  session,  as  the  Federal  Assembly,  are 
not  legislative  but  electoral  and  judicial.  1.  The  Assembly  elects 
the  Federal  Council,  the  federal  judges,  the  Chancellor,  and  the 
generals  of  the  federal  army.  2.  It  exercises  the  right  of  pardon. 
3.  It  determines  conflicts  of  jurisdiction  between  federal  au- 
thorities. 

The  President  of  the  National  Council  presides  over  the  sessions 
of  the  Federal  Assembly,  and  the  rules  of  the  National  Council 
for  the  most  part  govern  its  proceedings. 

Administration  of  Justice :  I.  The  Cantonal  Courts.  — 
The  Cantons  are  left  quite  free  by  the  Federal  Constitution  to 
organize  their  courts  as  they  please.  Not  even  a  general  uni- 
formity of  system  is  prescribed ;  nor  are  the  cantonal  courts  sub- 
ordinated to  the  Federal  Court  except  in  certain  special  cases 
provided  for  by  statute.  It  may  be  said,  in  general  terms,  that 


414  THE   GOVERNMENTS   OF   SWITZERLAND. 

justice  is  administered  by  the  Cantons,  with  recourse  in  selected 
cases  to  the  tribunal  of  the  Confederation. 

There  is,  however,  a  certain  amount  of  uniformity  in  judicial 
organization  throughout  Switzerland.  There  are  usually  two 
ranks  of  courts  in  each  Canton  :  District  Courts  (Bezirksgerichte 
or  Amtsgerichte)  which  are  courts  of  first  instance,  and  a  supreme 
Cantonal  Court  (Kantonsgericht)  which  is  the  court  of  final  in- 
stance. There  are  also  everywhere  Justices  of  the  Peace  whose 
duty  it  is,  in  many  places,  first  to  act  as  mediators  in  legal  dis- 
putes,—  and  as  magistrates  only  when  they  fail  as  mediators. 
Petty  police  cases  are  heard  by  the  District  Courts ;  but  for  the 
hearing  of  criminal  cases  there  is  trial  by  jury  under  the  presi- 
dency of  a  section  of  the  supreme  court  justices,  or  by  a  special 
criminal  court  acting  without  a  jury. 

In  some  of  the  larger  Cantons,  there  are  special  Cassation 
Courts  formed  by  a  division  of  the  Cantonal  Court.  Special 
Commercial  Courts  (HancMsgerichte),  and  industrial  courts 
(Gewerbegerichte)  have  been  established  in  industrial  districts. 

In  many  of  the  Cantons  the  Supreme  Court  exercises  cer- 
tain semi-executive  functions,  taking  the  place  of  a  Ministry 
of  Justice,  in  overseeing  the  action  of  the  lower  courts  and  of  all 
judicial  officers,  such  as  the  states-attorneys. 

In  most  of  the  Cantons,  too,  the  Supreme  Court  makes  an- 
nual reports  to  the  legislative  Council,  containing  a  full  review 
of  the  judicial  business  of  each  year,  discussing  the  state  of 
justice,  with  criticisms  upon  the  system  in  vogue  and  suggestions 
of  reform.  These  reports  are  important  sources  of  judicial 
statistics. 

The  terms  of  cantonal  judges  vary.  The  usual  terms  are 
three,  four,  and  six  years.  The  judges  of  the  inferior  courts  are 
as  a  rule  elected  directly  by  the  people  :  those  of  the  supreme 
courts  commonly  by  the  legislative  Council. 

No  qualifications  for  election  to  the  bench  are  required  by 
Swiss  law  except  only  the  right  to  vote.  But  here,  as  well  as 
in  regard  to  the  very  brief  terms  of  the  judges,  practice  is  more 
conservative  than  the  law.  To  the  higher  courts,  at  least,  com- 
petent lawyers  are  generally  elected  ;  and  reelection  is  in  most 
cases  the  rule. 


THE   GOVERNMENTS   OF   SWITZERLAND.  415 

In  Geneva  the  States-attorney,  instead  of  the  Supreme  Court,  is 
given  the  general  duties  of  superintendence  which,  outside  of  Switzerland, 
are  vested  in  a  Minister  of  Justice ;  and  in  other  Cantons  similar  officers 
.are  given  prerogatives  much  more  extensive  than  are  usually  associated 
with  such  offices  elsewhere. 

II.  The  Federal  Court.  —  The  Federal  Court  was  created 
by  the  Constitution  of  1848.  Before  that  time  arbitration  had 
been  the  only  form  of  adjudication  between  the  Cantons.  Even 
in  creating  it,  however,  the  Constitution  of  1848  withheld  from 
the  Federal  Court  all  real  efficiency :  its  jurisdiction  was  of  the 
most  restricted  kind  and  was  condemned  to  be  exercised  under 
the  active  superintendence  of  the  omnipotent  Federal  Assembly. 
It  was  one  of  the  chief  services  of  the  constitutional  reform  of 
1874  that  it  elevated  the  Federal  Court  to  a  place  of  substantial 
influence  and  real  dignity.  It  still  rests  with  the  Houses  to  de- 
termine by  statute  many  of  the  particular  questions  which  shall 
be  submitted  to  the  Court ;  but  its  general  province,  as  well  as 
its  organization,  is  prescribed  in  considerable  detail  by  the  Con- 
stitution. 

The  Federal  Court  consists  of  twenty-four  judges  chosen  by 
the  Federal  Assembly  (with  due  regard  to  the  representation  of 
the  three  official  languages  of  Switzerland,  —  German,  French,  and 
Italian)  for  a  term  of  six  years.  Every  two  years,  also,  the  Fed- 
eral Assembly  selects  two  of  these  twenty-four  to  act,  the  one  as 
President,  the  other  as  Vice-President,  of  the  Court.  The  Court 
sits,  not  at  Berne,  the  legislative  capital  of  the  Confederation,  but 
at  Lausanne. 

The  Federal  Assembly  elects,  at  the  same  time  that  it  chooses 
the  judges,  nine  substitutes  also,  who  sit,  as  occasion  demands, 
in  place  of  any  judge  who  cannot  act,  and  who  receive  for  their 
occasional  services  a  per  diem  compensation. 

The  members  of  the  Court  may  not  hold  any  other  office  or 
follow  any  other  business  during  their  term  as  judges ;  nor  can 
they  be  members  of  any  business  corporation. 

Criminal  Jurisdiction  of  the  Federal  Court.  —  In  the  exercise 
of  its  criminal  jurisdiction  the  Federal  Court  goes  on  circuit. 

The  country  is  divided  into  three  assize  districts  (Assisen- 
bezirke),  one  of  which  embraces  French-  and  Italian-speaking 
Switzerland  ;  the  other  two,  German-speaking  Switzerland. 


416  THE    GOVERNMENTS    OF    SWITZERLAND. 

The  Court  annually  divides  itself,  for  criminal  business,  into 
four  bodies :  A  Criminal  Chamber,  the  Federal  Penal  Court, 
a  Chamber  of  Complaints,  and  a  Chamber  of  Appeals.  The  Crim- 
inal Chamber  decides  at  what  places  in  the  several  Districts  assizes 
shall  be  held.  The  places  selected  furnish,  at  their  own  cost,  a 
place  of  meeting.  The  cantonal  police  and  court  officers  serve  as 
officers  of  this  Court.  A  States-attorney  appears  for  the  Federal 
Council  in  all  cases. 

Cases  in  Public  Law.  —  The  jurisdiction  of  the  Federal 
Court  covers  a  great  variety  of  causes.  There  are  (1)  Cases  in 
Public  Law.  These  include  disputes  between  Cantons  concern- 
ing such  matters  as  the  fulfilment  of  inter-cantonal  agreements, 
the  settlement  of  boundary  lines,  conflicts  of  jurisdiction  between 
the  authorities  of  different  Cantons,  and  extradition ;  also  the 
enforcement  of  agreements  between  Cantons  and  foreign  govern- 
ments ;  and,  most  fertile  of  all,  cases  involving  the  constitutional 
rights  of  citizens,  whether  those  rights  rest  upon  the  federal  or 
upon  a  cantonal  constitution.  Its  jurisdiction  does  not,  however, 
cover  questions  as  to  the  constitutionality  of  federal  legislation. 
The  federal  Houses  are  the  sole  judges,  under  public  opinion,  of 
their  own  powers. 

It  is  considered  "the  proper  and  natural  province  of  the  Federal 
Court"  in  Switzerland  "to  defend  the  people  and  the  citizens  against 
abuses  of  power,  whether  they  proceed  from  federal  or  cantonal  authori- 
ties." Such  a  province  is,  however,  in  the  very  nature  of  the  case,  insus- 
ceptible of  definite  limitations  ;  and  the  powers  of  the  Federal  Court  have 
gradually  spread  far  abroad  by  reason  of  the  temptations  of  this  vague 
prerogative.  The  most  usual  and  proper  cases  arising  under  it  are  in- 
fringements of  the  federal  guarantee  to  citizens  of  equality  before  the 
law,  of  freedom  of  settlement,  of  security  against  double  taxation,  of 
liberty  of  the  press,  etc.,  but  the  Court  has  gone  much  beyond  these.  Its 
jurisdiction  has  been  extended  to  the  hearing  of  complaints  against  can- 
tonal authorities  for  ordinary  alleged  failures  of  justice,  such  as  the  Consti- 
tution can  hardly  have  contemplated  giving  into  the  hands  of  the  Federal 
Court.  The  Court  has  even  "brought  within  the  circle  of  its  judgments 
cases  where  the  appellant  asserts  a  denial  of  his  claims  by  a  cantonal 
judge  grounded  upon  merely  obstructive  motives  or  an  arbitrary  applica- 
tion of  the  law."  * 

lOrelli,  p.  42. 


THE   GOVERNMENTS    OF    SWITZERLAND.  417 

The  Federal  Court  has  also  cognizance  of  contested  citizenship 
cases  between  Communes  of  different  Cantons.  For  citizenship 
in  Switzerland  is  first  of  all  of  the  Commune.  The  Commune  is, 
so  to  say,  the  unit  of  citizenship,  and  it  is  through  communal 
citizenship  that  cantonal  citizenship  is  held  (p.  401). 

(2)  Civil   Cases   in   Private   Law.  —  The    administration 
of  justice  between  individuals  under  federal  laws  is  left  for  the 
most  part  to  the  cantonal  courts,  which  thus  serve  in  a  sense  as 
federal  tribunals  ;  but  if,  in  any  case  falling  under  federal  law,  a 
sum  of  3000  francs  be  involved,  or  if  the  matter  involved  be  not 
susceptible  of  money  valuation,  an  appeal  may  be  taken  to  the 
Federal  Court  from  the  court  of  last  resort  in  the  Canton.     Cer- 
tain other  private  law  cases,  even  when  they  do  not  involve  fed- 
eral  law,  may  be   brought,  —  not   by  appeal,  but  in  the  first 
instance,  —  before    the   Federal   Court    upon  another  principle, 
because,   i.e.,   of    the   nature   of  the   parties   to   the   suit,   viz. : 
Cases  between  Cantons  and  private  individuals  or  corporations ; 
cases  in  which  the  Confederation  is  defendant;    cases  between 
Cantons ;  and  cases  between  the  Confederation  and  one  or  more 
Cantons. 

Cases  of  the  first  two  of  these  four  classes  can  be  brought  in  the 
Federal  Court  only  if  they  involve  a  sum  of  3000  francs.  Otherwise  they 
must  be  instituted  and  adjudged  in  the  cantonal  Courts. 

By  agreement  of  both  parties,  the  jurisdiction  of  the  Federal  Court 
may  be  invoked  in  any  case  in  which  the  subject  of  litigation  is  rendered 
important  by  virtue  of  federal  legislation. 

A  special  railroad  jurisdiction,  too,  has  been  given  by  statute  to 
the  Federal  Court,  covering  cases  concerning  right  of  way  and  the  right 
of  eminent  domain,  and  cases  in  private  law  between  railroads  and  the 
Confederation. 

(3)  Criminal   Cases.  —  The   criminal  jurisdiction  of  the 
Federal  Court  covers  cases  of  high  treason  and  of  outbreak  or 
violence  against  the  federal  authorities,  breaches  of  international 
law,  and  political  offences  which  were  the  cause  or  the  result  of 
disorders  which  have  necessitated  the  intervention  of   the  Con- 
federation.    It  may,  however,  in  the  discretion  of  certain  authori- 
ties, include  a  variety  of  other   matters   in  addition  to  these. 
Federal  officers,  whose  breaches  of  duty  are  ordinarily  punished 


418  THE   GOVERNMENTS    OF    SWITZERLAND. 

upon  judgment  of  the  cantonal  tribunals,  may,  by  resolution  of 
the  Federal  Council  or  of  the  Federal  Assembly,  be  handed  over 
to  the  Federal  Court  "to  be  judged.  Cases  may  even,  also,  be  as- 
signed to  the  federal  tribunal  by  cantonal  constitutions  or  laws, 
if  the  Federal  Assembly  assent  to  the  arrangement. 

The  Chamber  of  Appeals  of  the  Federal  Court  takes  cognizance,  besides, 
of  complaints  concerning  judgments  of  the  cantonal  courts  given  under 
certain  fiscal,  police,  and  banking  laws  of  the  Confederation. 

By  amendments  to  the  constitution  adopted  in  1898,  the  feder- 
ation was  expressly  authorized  to  deal  with  all  matters  of  civil 
and  criminal  law.  To  carry  out  this  power  and  bring  about 
uniformity  a  civil  code  was  drafted  and  put  into  operation  by  the 
Federal  Assembly  on  January  1,  1912.  A  similar  codification  of 
the  criminal  law  is  in  process. 

The  Federal  Council:  (4)  Administrative  Cases.  —  The 
administrative  jurisdiction  of  the  Confederation,  which  is  exer- 
cised, not  by  the  Federal  Court,  but  by  the  Federal  Council, 
includes  a  great  number  of  important  cases.  It  covers  questions 
touching  the  calling  out  of  the  cantonal  militia,  the  administra- 
tion of  the  public-school  system  of  the  Cantons,  freedom  of  trade, 
occupation  and  settlement,  consumption  taxes  and  import  duties, 
freedom  of  belief  and  worship,  the  yalidity  of  cantonal  elections 
and  votes,  and  rights  arising  out  of  contracts  with  foreign  powers 
regarding  trade  relations,  the  credit  to  be  given  to  patents,  ex- 
emption from  military  service,  freedom  of  passage,  etc.  In  all 
these  cases  an  appeal  lies  from  the  Federal  Council  either  to  the 
Houses  or  to  the  Federal  Court. 

In  1914  an  amendment  to  the  Constitution  was  adopted,  pro- 
viding for  the  establishment  of  an  administrative  court  to  exer- 
cise such  jurisdiction  in  administrative  cases  as  the  Federal 
Assembly  may  confer  upon  it. 

Inter-Cantonal  Judicial  Comity.  —  The  Swiss  Constitu- 
tion, in  close  imitation  of  the  provision  on  the  same  subject  in 
the  Constitution  of  the  United  States,  requires  that  full  force  and 
credit  be  given  the  judgments  of  the  courts  of  each  Canton 
throughout  the  Confederation, 


THE  GOVERNMENTS   OF   SWITZERLAND.  419 

SOME  REPRESENTATIVE  AUTHORITIES. 

Adams,  Sir  F.  O.,  and    Cunningham,  C.  D.,   The   Swiss   Confederation. 

8vo,  London  and  X.Y.,  1889. 
Blumer,  J.  J.,  Handbuch  des  schweizerischen  Bundesstaatsrechts,  2  vols., 

1863-1865;  New  ed.  completed  by  J.  Morel,  1887. 
Bluntschli,  J.  C.,  Geschichte  des  schweizerischen  Bundesrechts  von  den 

ersten  ewigen  Biiuden  bis  auf  die  Gegenwart,  2  vols.,  1849-1852; 

2d  ed.,  VoL  L,  187:.. 
Borgeaud,  Chas.,  Adoption  and  Amendment  of  Constitutions  in  Europe 

and  America.     Trans,  by  C.  D.  Hazen  and  J.  M.  Vincent.     New  York 

and  London,  1895.     Pp.  250  ff. 

Brooks,  R.  C.,  Government  and  Politics  of  Switzerland,  N.Y.,  1918.     Ex- 
cellent and  has  critical  bibliography. 
Burakhanlt,    W.,    Kommentar   der    Schweizerischen    Bundesverfassung, 

Bern,  2  ed.,  1914. 

Coolidge,  Early  History  of  the  Referendum,  in  the  English  Historical  Re- 
view, 1891,  p.  674. 
Curti,  Th.,  Le  Referendum  ;  histoire  de  la  legislation  populaire  en  Suisse, 

Paris,  1915. 
Demombynes,  G.,  Les  Constitutions  Europe*nnes,  Ed.  1883,  Vol.  II.,  pp 

30i  ff. 

Deploige,  S.,  Le  Referendum  en  Suisse,  Brussels,  1893. 
Dodd,  W.  E.,  Modern  Constitutions,  2  vols.,  Chicago,  1909. 
Droz,  Numa,  Etudes  et  portraits  politiques. 
Units,  J.,  Das  offentliche  Recht  der  schweizerischen  Eidgenossenschaft, 

2d  ed.,  Zurich,  1878. 
Dupriez,  L.,  Les  Ministres  dans  les  principaux  pays  d'Europe  et  d'Ame"- 

rique,  2  vols.,  Paris,  1892.     Vol.  II.,  pp.  167  ff. 
Hilty,  C.,  Die  Bundesverfassung  der  schweizerischen  Eidgenossenschaft, 

Bern,  1891. 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe,  2  vols., 

Boston,  1896.     Chaps.  XL-XIII. 

Macy,  Jesse  and  Gannaway,  Comparative  Free  Government,  N.Y.,  1915. 
Moses,  Bernard,  The  Federal  Government  of  Switzerland,  An  Essay  on 

the  Constitution.     A  comparative  study.     San  Francisco,  1889. 
Ogg,  F.  A.,  The  Government  of  Europe,  N.Y.,  1913. 
Orelli,  Alois  von,  Das  Staatsrecht  der  schweizerischen  Eidgenossenschaft 

(in  Marquardsen's  Handbuch  des  offentlichen  Rechts),  Freiburg  im 

B.,  1885. 
Rambert,  Eugene,  Etudes  historiques  et  nationales,  —  Les  Alpes  Suisses, 

1889. 


420  THE   GOVERNMENTS   OF   SWITZERLAND. 

Richman,  Irving  B.,  Appenzell,  Pure  Democracy  and  Pastoral  Life  in 
Inner  Rhoden.  A  Swiss  Study.  London  and  N.Y.,  1895. 

Snell,  Ludwig,  Handbuch  des  schweizerischen  Staatsrechts,  2  vols.,  Zurich, 
1837-1845.  Contains  a  great  deal  of  original  material  for  the  period 
preceding  the  formation  of  the  present  federal  government. 

Stiissi,  Referendum  und  Initiative  in  den  Sweizerkantonen,  Ziirich,  1893. 

Vincent,  J.  M.,  Government  in  Switzerland.     N.Y.,  1900. 

Winchester,  Boyd,  The  Swiss  Republic,  Philadelphia  and  London,  1891. 


XI. 
THE  GOVERNMENT  OF  ITALY. 


The  Empire.  —  The  overthrow  of  the  Roman  Empire  by  the 
barbarian  tribes  in  the  fifth  century  did  not  destroy  the  tradition 
of  supremacy  associated  with  the  name  of  Rome,  any  more  than 
it  destroyed  Roman  law  and  civilization.  As  the  latter  survived 
and  profoundly  modified  the  civilization  imposed  upon  it,  so 
Rome  survived  as  the  traditional  mistress  of  the  world  and  be- 
came again  under  the  Frankish  kings,  in  name  at  least,  the  head 
of  a  new  Empire,  that  of  Charlemagne  and  his  successors.  The 
imperial  tradition  thus  revived  and  centered  in  Rome  had  a  pro- 
found influence  upon  subsequent  Italian  history  and  had  much  to 
do  with  the  late  realization  of  Italian  unity.  While  other  na- 
tions, as  France,  England,  and  Spain,  were  developing  into  the 
modern  national  states,  unified  under  their  own  national  kings, 
Italy  was  ruled  for  the  most  part  by  foreigners ;  in  the  first  in- 
stance by  the  Emperors  of  the  Holy  Roman  Empire,  who  were 
German,  and  at  a  later  date  by  these  German  Emperors  and  by 
the  French  and  Spanish  who  established  claims  to  various  parts 
of  the  peninsula. 

The  Church.  —  Throughout  all  this  period  the  Church  was 
a  temporal  power,  at  times  rivalling  in  influence  the  Emperor  and 
always  supreme  in  the  States  of  the  Church,  a  territory  stretch- 
ing across  central  Italy  from  northeast  to  southwest  and  for  cen- 
turies forming  a  competing  temporal  power. 

The  City  Republics.  —  In  the  later  Middle  Ages  there  grew 
up,  particularly  in  northern  Italy,  great  free  city  Republics,  such 
as  Genoa,  Florence,  Pisa,  Milan,  and  Venice  —  and  for  a  brief  mo- 
ment, Rome  itself.  These  city  Republics  felt  the  full  force  of 

421 


422  THE   GOVERNMENT   OF   ITALY. 

the  Renaissance  and  its  awakening  spirit,  and  for  a  space  played 
a  great  part  in  the  history  of  the  world.  In  time  they  lost  their 
republican  character  for  the  most  part  and  sank  into  subjection 
or  obscurity,  but  left  behind  them  a  strong  republican  tradition. 

Napoleon.  —  At  the  end  of  the  eighteenth  century  Italy 
remained  but  a  geographical  designation  for  a  great  number  of 
petty  kingdoms  and  principalities,  most  of  them  under  the  con- 
trol of  foreign  princes.  Napoleon,  with  the  conqueror's  ruthless- 
ness,  swept  them  all  away  and  established  the  Kingdom  of  Italy. 
Brief  as  was  the  existence  of  this  artificial  union,  it  nevertheless 
left  its  impression  of  a  united  Italy  —  an  impression  which  added 
strength  to  the  growing  sentiment  in  favor  of  national  unity. 

But  Napoleon's  Kingdom  of  Italy  had  been  preceded  by  the 
establishment  of  a  number  of  Republics  in  northern  Italy  when 
he  was  still  the  leader  of  nominally  republican  France.  They 
were  Republics  created  out  of  hand  by  the  conqueror  and  were  as 
readily  dissolved  by  the  same  hand,  yet  they  revived  the  medi- 
eval tradition  of  the  city  Republics  and  gave  expression  to  the 
awakening  spirit  of  the  people.  Thus  Napoleon  contributed  to 
the  development  of  the  aspiration  both  for  national  union  and  for 
a  republican  form  of  government. 

Congress  of  Vienna.  —  At  the  Congress  of  Vienna,  the 
former  condition  of  Italy  was  in  large  measure  reestablished  — 
everywhere  were  small  kingdoms  and  principalities  under  rulers 
whose  powers  were  nowhere  limited  by  constitutional  restraints 
and  many  of  whom  were  tyrannical.  Foreign  influence  was 
again  reestablished.  But  the  democratic  spirit  engendered  by  the 
French  Revolution  was  very  much  alive  and  led  to  the  organiza- 
tion of  secret  societies  whose  object  was  the  establishment  of  a 
united  Italy  under  a  republican  form  of  government. 

House  of  Savoy.  —  In  the  northwestern  part  of  the  penin- 
sula, stretching  from  the  mountains  to  the  sea,  was  the  Kingdom 
of  Sardinia,  under  the  rule  of  the  House  of  Savoy,  which  was  des- 
tined to  become  the  leader  in  the  unification  of  Italy,  but  as  a 
kingdom  and  not  as  a  republic.  In  response  to  the  Revolutionary 
movement  of  1848,  Charles  Albert,  its  king,  granted  to  his  people 
a  constitution,  called  the  Statute,  and  in  1848-49  he  sought  to 
free  Italy  from  the  oppression  of  Austria.  Though  defeated  and 


THE   GOVERNMENT    OF   ITALY.  423 

compelled  to  abdicate  in  favor  of  his  son,  Victor  Emmanuel,  he 
had  centered  the  thought  of  the  Italians  upon  the  House  of  Savoy 
as  the  possible  liberators  of  Italy.  Despite  the  threats  of  Austria, 
Victor  Emmanuel  refused  to  repeal  the  Statuto. 

The  four  principal  figures  in  the  struggle  for  Italian  unity 
were  Mazzini,  the  revolutionary  enthusiast;  the  King,  Victor 
Emmanuel ;  Cavour,  his  great  minister ;  and  Garibaldi,  the  dash- 
ing soldier  of  fortune.  Mazzini's  part  was  played  in  the  earlier 
years  in  filling  the  place  of  high  minded  advocate  of  liberty,  in 
stirring  the  spirit  of  freedom  throughout  Italy,  and  in  conspiring 
to  secure  its  realization.  The  king  formed  the  rallying  point  about 
which  the  sentiment  in  favor  of  unification  could  gather,  and  the 
high  place  which  he  held  in  the  respect  and  admiration  of  the 
people  contributed  much  to  the  willingness  of  the  republicans  to 
yield  their  preference  and  accept  a  monarchy.  Cavour  was  a 
truly  great  statesman  who  realized  that  the  Austrian  power  must 
be  driven  out  before  Italy  could  be  united.  Accordingly  he  in- 
duced Napoleon  III.  to  declare  war  on  Austria  in  1859,  in  con- 
junction with  Sardinia.  The  full  success  of  the  war  was  lost  by 
the  sudden  withdrawal  of  Napoleon,  leaving  Venice  still  in  the 
hands  of  Austria.  Garibaldi  fired  the  imagination  of  the  people, 
and  his  successful  operations  in  overrunning  Sicily  and  in  driving 
out  the  rulers  of  Naples  occurred  at  a  most  opportune  time. 

Cavour' s  original  plan  had  been  for  a  federation  of  the  Italian 
states  under  the  nominal  headship  of  the  Pope,  but  with  the  real 
leadership  in  the  King  of  Sardinia.  With  the  conclusion  of  the 
war  against  Austria,  leaving  Venice  in  her  hands,  he  concluded 
that  the  only  solution  lay  in  unification  under  the  House  of  Savoy. 
The  northern  states  had  risen  in  1860  and  driven  out  their  rulers  ; 
they  now  voted  for  union  with  Sardinia.  Sicily  and  Naples,  freed 
by  Garibaldi,  likewise  decided  by  popular  vote  to  join  the  new 
kingdom.  With  the  exception  of  Venice,  held  by  Austria,  and 
Rome,  held  by  French  troops,  the  rest  of  Italy  soon  followed. 

Venice  was  not  added  to  the  new  Kingdom  of  Italy  till  1866, 
when  Italy  joined  Prussia  in  the  war  against  Austria ;  but  Italy 
failed  then  to  acquire  two  districts,  preponderantly  Italian  in 
population  and  sympathy —  the  Trentino,  a  mountain  district, 
and  Italia  Irredenta,  that  part  of  the  Adriatic  sea  coast  adjoining 


424  THE   GOVERNMENT    OF   ITALY. 

Venice,  of  which  Trieste  is  the  most  important  city.  Both  of 
these  districts  will  have  been  added  to  Italy  as  a  result  of  the  Great 
War,  1914-1918.  Eome  was  acquired  in  1870  at  the  time  of  the 
Franco-Prussian  war,  when  Italian  soldiers  took  possession  of  the 
city  and  Rome  became  the  capital  of  a  united  Kingdom  of  Italy. 
Thereby  the  last  remnant  of  the  temporal  power  of  the  Pope  was 
destroyed. 

The  Statute.  —  The  Statute  granted  by  Charles  Albert  in 
1848  remains  to-day  the  constitution  of  Italy — not  the  whole 
constitution,  for  both  custom  and  enactment  have  greatly  modified 
the  original  instrument,  but  it  is  still  the  principal  source  of  gov- 
ernmental arrangements.  As  the  Kingdom  of  Sardinia  expanded 
into  the  Kingdom  of  Italy  the  Statute  was  extended  to  the  new 
territories.  The  Statuto  contained  no  provision  for  its  amend- 
ment, and  the  custom,  has  become  so  firmly  established  as  to  be  re- 
garded as  a  part  of  the  constitution  that  the  constitution  may  be 
amended  by  an  ordinary  act  of  Parliament. 

The  eighty-four  articles  of  the  constitution  deal  with  the 
rights  and  duties  of  citizens,  the  Crown,  the  Ministers,  the  Sen- 
ate, the  Chamber  of  Deputies,  and  the  Judiciary.  All  inhabitants 
are  guaranteed  equality  before  the  law ;  liberty  of  person ;  free- 
dom of  the  press  and  of  assembly,  though  the  latter  is  subject 
to  qualifications ;  inviolability  of  property  and  of  domicile ;  and 
exemption  from  taxation  not  authorized  by  Parliament. 

The  King.  —  According  to  the  Statuto  the  form  of  govern- 
ment is  a  "representative  monarchical  government,"  with  an 
hereditary  king  who  succeeds  under  the  Salic  law,  that  is,  only 
by  and  through  the  male  line.  The  executive  power  is  vested  in 
the  King,  who  approves  and  promulgates  the  laws,  concludes 
treaties,  declares  war,  appoints  all  officers  of  state,  makes  decrees 
and  ordinances,  creates  Senators,  and  commands  the  military  and 
naval  forces.  These  powers,  though  vested  in  the  King,  are  not 
exercised  by  him  but  by  ministers  responsible  to  the  Chamber  of 
Deputies.  No  act  of  the  king  is  valid  unless  countersigned  by 
one  of  his  ministers,  and  this  fact  is  the  legal  foundation  for  the 
'responsibility  of  the  ministers  to  the  Chamber  of  Deputies. 

The  actual  powers  exercised  by  the  King  are  slight,  and  no  at- 
tempt has  been  made  by  any  one  of  the  three  kings  to  be  other 


THE   GOVERNMENT   OF   ITALY.  425 

than  a  constitutional  monarch,  but  each  has  recognized  whole- 
heartedly that  the  actual  government  is  carried  on  by  the  minis- 
ters under  responsibility  to  the  popular  house  of  Parliament. 
The  "  representative "  function  of  the  King  is  not  without  im- 
portance ;  his  opinions  in  matters  of  foreign  relations  have  much 
weight  and  at  times  of  cabinet  crises,  when  the  ministry  resigns 
the  King  may  exercise  a  certain  amount  of  choice  with  respect  to 
the  man  who  shall  be  selected  to  form  a  new  cabinet  and  in  doing 
so  may  exert  some  influence  upon  the  course  of  government. 

The  Ministry.  —  As  in  other  countries  with  responsible 
cabinet  government,  the  ministers  are  both  political  leaders  and 
heads  of  the  administrative  department.  Of  the  latter  there  are 
at  present  thirteen,  which  are  as  follows :  Foreign  Affairs  ;  War ; 
Marine;  the  Interior;  Finance;  the  Treasury;  Public  Instruction ; 
Public  Works;  Justice  and  Ecclesiastical  Affairs;  Commerce, 
Industry,  and  Agriculture ;  Posts  and  Telegraphs ;  Colonies ;  and 
Railways  and  Merchant  Marine. 

In  the  exercise  of  their  functions  as  political  leaders,  the  min- 
isters, who  are  members  either  of  the  Senate  or  of  the  Chamber 
of  Deputies,  have  a  right  to  appear  upon  the  floor  and  to  speak  in 
both  houses,  though  their  right  to  vote  is  confined  to  the  house  of 
which  they  are  members.  The  king  may  appoint  to  the  post  of 
minister  one  who  is  not  a  member  of  Parliament,  but  such  a  min- 
ister must  be  appointed  a  member  of  the  Senate  or  stand  for 
election  to  the  Chamber  at  the  first  vacancy.  Also  there  have 
been  ministers  without  portfolio.  The  premier  has  generally 
held  the  post  of  Minister  of  the  Interior. 

As  the  head  of  the  government,  responsible  to  the  Chamber, 
the  cabinet  takes  the  initiative  in  legislation,  though  private 
members  may  introduce  bills;  but  by  reason  of  the  multiplicity 
of  parties,  cabinets  have  usually  been  lacking  in  internal  unity  and 
in  the  power  of  controlling  the  Chamber,  with  the  result  that  it  is 
difficult  for  a  cabinet  to  inaugurate  and  put  through  an  extended 
programme  and  that  ministries  change  with  frequency. 

The  Senate.  —  The  Italian  Senate  is  unlike  any  other  sec- 
ond chamber  in  its  composition.  Its  membership  is  unlimited  in 
number  (395  in  1916),  and  aside  from  the  royal  princes,  of  whom 
there  are  six,  its  members  are  appointed  by  the  king  for  life  from 


426  THE   GOVERNMENT   OF   ITALY. 

certain  classes  of  the  people  as  defined  in  the  Statute.  Generally 
these  classes  may  be  said  to  comprise  high  state  officials,  —  church 
officials  also  are  eligible  but  since  the  break  with  the  Vatican  in 
1870  none  have  been  appointed,  —  persons  of  fame  in  science  or 
literature  or  who  have  performed  a  distinguished  service  for  the 
state,  and  persons  who  pay  over  3000  lire  ($600)  in  taxes.  Ap- 
pointment by  the  king  means  of  course  appointment  by  the 
ministry  in  power,  but  the  Senate  has  a  right  to  decide  whether 
or  not  the  proposed  appointee  comes  from  one  of  the  recognized 
classes  and  in  a  number  of  instances  it  has  decided  that  the  re- 
quirements had  not  been  met  and  in  consequence  the  appointment 
failed.  Members  must  not  be  less  than  forty  years  of  age.  The 
president  and  vice-president  are  designated  by  the  crown.  The 
power  of  appointment  has  been  exercised  on  several  occasions  for 
the  purely  political  purpose  of  changing  the  opinion  of  the  body, 
as  many  as  seventy-five  senators  being  appointed  at  one  time  in 
1890,  and  through  this  power  the  equality  of  the  Senate  with  the 
chamber  has  been  destroyed. 

Legally  the  Senate  has  an  equal  voice  with  the  Chamber  in  law- 
making,  and  no  bill  can  become  a  law  without  its  consent,  but  its 
consent  can  be  forced  by  the  method  of  appointment.  The  Senate 
lacks  popular  character  and  cannot  stand  against  the  Chamber. 
Ministers  are  responsible  to  the  Chamber  and  not  to  the  Senate 
and  those  cases  in  which  opposition  in  the  Senate  has  led  to  the 
resignation  of  a  ministry  may  be  regarded  as  accidental. 

The  Senate  may  act  as  a  High  Court  for  the  trial  of  ministers 
impeached  by  the  Chamber  and  to  try  cases  of  high  treason  and 
attempts  upon  the  safety  of  the  state. 

The  Chamber  of  Deputies.  —  The  popular  house  of  the 
Italian  Parliament  is  elected  on  the  basis  of  universal  manhood 
suffrage,  except  that  those  under  thirty  years  of  age  who  have 
neither  performed  military  service  nor  learned  to  read  and  write 
are  excluded.  In  the  earlier  years  of  the  Kingdom  the  electorate 
was  narrowly  limited,  due  to  the  backward  condition  of  the  country 
and  to  the  large  proportion  of  illiterates.  With  the  establish- 
ment of  better  school  facilities,  and  with  the  economic  and  com- 
mercial development  of  the  country,  the  suffrage  has  been  ex- 
tended until  by  the  Electoral  Law  of  1912  universal  manhood 


THE  GOVERNMENT   OF  ITALY.  427 

suffrage  was  all  but  reached.  There  is  still  a  large  ignorant  and 
illiterate  population  but  no  bad  effects  therefrom  have  as  yet 
made  themselves  felt  in  serious  fashion ;  and  universal  manhood 
suffrage  is  in  keeping  with  the  democratic  spirit  of  the  people. 

The  Chamber  is  composed  of  508  members,  or  one  to  each 
71,000  inhabitants,  elected  each  from  a  district.  Originally  the 
deputies  were  elected  from  separate  districts  but  in  1882  the 
scrutina  di  lista,  or  the  election  of  a  number  of  deputies  from  a 
single  district,  was  introduced.  It  was  hoped  that  the  new  sys- 
tem would  lead  to  the  choice  of  deputies  having  more  of  a  national 
and  less  of  a  local  point  of  view,  but  the  experiment  did  not  prove 
a  success  and  was  abandoned  in  1891  and  the  former  system  was 
reestablished.  A  candidate  in  order  to  be  elected  must  receive 
the  votes  of  more  than  one-tenth  of  the  inscribed  electors  and 
more  than  one-half  of  the  votes  cast.  If  no  candidate  secures  the 
necessary  number  of  votes,  a  second  election  is  held  a  week  later. 
Qualifications  of  Members.  —  Members  of  the  Chamber 
must  be  citizens,  at  least  thirty  years  of  age,  and  in  possession  of 
full  civil  and  political  rights.  It  is  not  necessary  that  a  member 
should  reside  in  the  district  which  he  represents.  Priests,  salaried 
government  officials,  except  the  officers  of  the  army  and  navy, 
ministers  and  under-secretaries,  and  a  few  other  high  officials  and 
all  persons  receiving  stipends  from  the  state  are  ineligible.  Of 
those  government  officials  who  are  eligible  there  can  never  be 
more  than  forty  who  are  members  at  the  same  time,  but  ministers 
and  under-secretaries  are  not  counted  in  the  forty.  Deputies  are 
elected  for  a  period  of  five  years,  which  is  the  maximum  period  for 
the  duration  of  Parliament,  but  they  seldom  fill  out  the  term  be- 
cause of  the  earlier  dissolution  of  Parliament. 

The  members  receive  2000  lire  ($400)  to  cover  the  cost  of  cor- 
respondence and  4000  lire  a  year  if  not  in  receipt  of  an  income 
from  a  public  source.  Those  who  are  in  receipt  of  a  public  in- 
come receive  the  difference  to  make  up  this  income  to  four 
thousand  lire.  All  travel  free  on  government  railroads.  Since 
the  budget  and  the  contingent  of  recruits  is  determined  by  annual 
laws,  the  houses  must  meet  at  least  once  a  year  unless,  as  fre- 
quently happens,  the  sessions  are  prolonged  for  more  than  a  year. 
Procedure.  —  The  president  and  vice-president  of  the 


428  THE  GOVERNMENT   OF  ITALY. 

Senate  are  appointed  by  the  Crown,  but  the  Chamber  chooses 
its  own  president,  who  is  continued  in  office  without  regard  to 
party  affiliations.  The  business  of  the  houses  is  transacted  by 
committees.  The  president  of  the  Chamber  appoints  the  com- 
mittees on  rules  and  contested  elections ;  in  each  house  the 
budget  committee  is  elected  directly  by  the  houses.  For  the 
rest,  the  Senate  is  divided  into  five  and  the  Chamber  into  nine 
sections  by  lot  every  two  months  and  these  sections  choose  the 
committees  not  otherwise  provided  for. 

The  ministers  appear  regularly  upon  the  floor  of  the  houses  to 
defend  their  measures  and  to  answer  questions.  The  interpella- 
tion, or  challenge  of  the  policy  of  the  ministry,  exists,  but  the 
vote  must  follow  after  an  interval  of  several  days,  and  the  minis- 
try is  protected  from  the  rashness  of  a  snap  vote  taken  immedi- 
ately which  has  proved  so  destructive  to  ministries  in  France. 

The  Judiciary.  —  The  judicial  system  of  Italy  is  the 
result  of  a  compromise  between  the  existing  order  in  the  indi- 
vidual states  at  the  establishment  of  the  Kingdom  and  the  needs 
of  the  new  Kingdom.  As  a  result  there  is  lacking  that  centrali- 
zation and  coordination  of  courts  which  makes  for  unity.  Instead 
of  a  single  supreme  court  there  are  five  courts  of  Cassation,  located 
in  Turin,  Florence,  Koine,  Naples,  and  Palermo,  —  each  supreme 
within  its  own  territory,  and  each  interpreting  the  law  in  accord- 
ance with  its  own  views,  —  so  that  it  is  possible  to  have  five  dif- 
ferent interpretations  of  the  same  law,  each  affecting  a  different 
district.  The  Court  of  Cassation  at  Rome  has  had  conferred 
upon  it  exclusive  jurisdiction  to  decide  in  cases  of  conflict  of 
jurisdiction  between  different  courts,  conflicts  between  the  courts 
and  the  administrative  authorities,  the  transfer  of  cases  from 
one  court  to  another,  writs  of  error  in  criminal  cases,  and  some 
other  special  matters,  but  in  all  other  cases  involving  the  ordinary 
civil  law  the  five  courts  of  Cassation  are  all  equal.  The  lower 
courts  are  more  symmetrically  organized,  for  they  are  new  crea- 
tions and  do  not  differ  materially  from  the  French  plan. 

Administrative  Courts.  —  In  Italy,  as  in  the  rest  of  conti- 
nental Europe,  there  are  administrative  courts  to  try  cases  affect- 
ing administrative  officers.  In  England  no  distinction  is  made 
between  public  and  private  law  and  all  offences  are  subject  to  trial 


THE   GOVERNMENT   OF   ITALY.  429 

by  the  ordinary  courts.  Administrative  law  and  administrative 
courts  are  sharply  differentiated  in  France  from  the  ordinary 
law  and  courts.  In  Italy  the  distinction  is  made  but  it  has  not 
been  so  clearly  carried  out  as  hi  France.  A  special  section  of  the 
Council  of  State,  composed  of  a  president  and  eight  councillors  ap- 
pointed by  the  king,  serves  as  the  highest  administrative  court, 
while  inferior  jurisdiction  has  been  conferred  upon  the  prefects 
and  certain  assistants  in  the  provinces.  It  has  in  general  the 
right  to  decide  whether  the  acts  of  the  local  or  central  officers 
are  authorized  by  law,  unless  some  special  provision  to  the  con- 
trary has  been  made  by  law. 

Local  Government.  —  The  local  government  in  Italy  is 
modeled  on  that  of  France  and  is  even  more  centralized  than  that 
of  the  latter.  Familiarity  with  the  French  system  and  the  need 
for  a  strongly  centralized  government  to  meet  the  unsettled  con- 
ditions in  parts  of  the  newly  formed  kingdom  combined  to  sweep 
away  all  preexisting  territorial  divisions  and  forms  of  local  gov- 
ernment. In  its  place  was  substituted  an  artificial  division  of 
the  country  into  provinces,  circondari,  mandamenti,  and  com- 
munes, lacking  in  real  local  life. 

Prefect.  —  At  the  head  of  each  province  —  they  are 
sixty-nine  in  number  —  is  a  prefect  appointed  by  the  king  and 
directly  responsible  to  the  minister  of  the  Interior.  His  func- 
tions correspond  very  closely  to  those  of  the  French  prefect,  for 
he  is  both  a  political  and  an  administrative  official.  He  pub- 
lishes and  executes  the  laws,  supervises  the  administration  of  the 
provinces,  opens  and  closes  the  sessions  of  the  provincial  council, 
sanctions  or  vetoes  the  acts  of  that  body,  and  protects  the  inter- 
ests of  the  central  government  in  the  province. 

Council.  —  With  the  prefect  there  is  associated  a  council 
of  from  twenty  to  sixty  members,  elected  for  a  period  of  six 
years,  with  one-half  of  the  members  renewed  every  three  years. 
The  Council  meets  regularly  once  a  year  and  its  most  important 
business  is  the  voting  of  the  provincial  budget.  A  commission, 
elected  by  the  Council  from  its  members,  carries  on  the  business 
of  the  Council  in  the  interval  between  its  meetings.  The  prefect 
has  large  powers  of  control  over  the  proceedings  of  the  Council 
and  he  is  not  responsible  to  it  but  only  to  the  central  government. 


430  THE   GOVERNMENT    OF    ITALY. 

The  circondari  are  primarily  electoral  districts  and  the  mandamenti, 
or  cantons,  are  mere  administrative  subdivisions  of  the  provinces. 
The  Commune.  —  The  commune  is  the  most  vital  of  Italian 
local  government  units.  It  has  the  duty  of  maintaining  streets, 
roads  and  markets  ;  to  provide  elementary  education ;  to  provide 
poor  relief  ;  to  see  to  the  registration  of  electors  ;  to  keep  a  regis- 
ter of  births  and  deaths ;  and  to  provide  police  protection.  In 
addition  to  its  duties,  it  may  provide  for  every  sort  of  local  enter- 
prise. The  government  of  the  commune  is  composed  of  a  syndic, 
or  mayor,  and  a  council.  The  syndic  is  elected  by  the  council 
from  among  its  members  for  a  term  of  three  years.  Though 
chosen  by  the  council  the  syndic  is  a  representative  of  the  central 
government  and  may  be  removed,  save  in  exceptional  circum- 
stances, only  with  the  consent  of  the  prefect  and  is  responsible  not 
to  the  council  but  to  his  superiors.  The  council  is  composed  of 
from  fifteen  to  eighty  members  and  its  members  are  elected  for  a 
period  of  six  years,  one-half  being  renewed  every  three  years. 
The  council  meets  regularly  twice  a  year  and  its  work  is  carried 
on  between  meetings  by  a  committee  chosen  from  its  members. 

The  Pope.  —  The  relation  of  the  Kingdom  of  Italy  to  the 
Papacy  has  been  extremely  difficult  of  a  satisfactory  solution. 
The  temporal  power  of  the  Popes  had  existed  for  centuries  and 
was  regarded  as  necessary  for  full  religious  freedom  on  the  part 
of  the  church.  But  the  continued  existence  of  the  Papal  states 
stretching  across  the  central  portion  of  the  peninsula  was  a  bar  to 
Italian  unity.  Accordingly  the  Papal  states,  with  the  exception  of 
Rome,  were  added  to  the  Kingdom  in  1860.  But  there  was  a 
feeling  that  without  Kome,  united  Italy  was  incomplete. 

Advantage  was  taken  of  the  Franco-Prussian  war,  when  Na- 
poleon III.  was  in  no  position  to  aid  the  Pope,  and  on  September 
20,  1870,  Italian  troops  entered  Home  and  took  possession  of  the 
city.  Before  moving  the  seat  of  government  to  Eome  it  was 
thought  best  to  settle  the  position  of  the  Pope,  so  the  Law  of  the 
Papal  Guarantees  of  May  13,  1871,  was  passed.  According  to 
this  law  the  Pope  enjoys  the  personal  rights  and  privileges  of  a 
sovereign.  His  person  is  declared  sacred  and  inviolable  ;  public 
officials  are  not  permitted  to  enter  his  palace  or  grounds  in  the  ex- 
ercise of  their  duties  ;  and  persons  accredited  to  him  enjoy  all  the 


THE  GOVEEIOIENT   OF   ITALY.  431 

immunities  of  diplomats.  He  is  guaranteed  freedom  of  intercourse 
and  protection  for  papers  and  messages ;  he  is  granted  annually 
the  sum  of  six  hundred  and  forty-five  thousand  dollars,  but  this 
he  has  never  consented  to  receive ;  and  he  is  left  in  undisturbed 
possession  of  the  palaces  of  the  Vatican,  the  Lateran,  and  Castel 
Gandolfo,  with  their  gardens  free  from  taxation. 

The  Popes  have  never  been  willing  to  recognize  the  loss  of  their 
temporal  power  or  to  acquiesce  in  the  present  arrangements. 
For  a  time  there  was  a  hope  that  foreign  powers  might  intervene 
to  reestablish  their  claims,  but  when  this  hope  vanished,  Pope 
Pius  IX.  in  1883  promulgated  a  decree,  the  non  expedit,  by  which 
it  was  declared  "  inexpedient "  for  Catholics  to  participate  in  Par- 
liamentary elections,  and  in  1895  what  had  been  declared  "  inex- 
pedient "  was  forbidden.  This  prohibition  did  not  apply  to  mu- 
nicipal elections  and  was  not  widely  observed  by  Catholics,  many 
of  whom  strongly  opposed  it.  Ten  years  later  it  was  found  neces- 
sary to  relax  the  prohibition ;  the  socialist  party  had  been  so 
rapidly  growing  in  strength  that  Pope  Leo  XIII  yielded  to  the 
argument  that  it  was  the  duty  of  the  Church  to  oppose  socialism, 
and  in  1905  he  issued  an  encyclical  which  made  it  the  duty  of 
Catholics  to  support  the  social  order  and  enjoined  that  they  take 
part  in  political  contests  in  its  defense  wherever  it  was  threatened. 
The  participation  in  political  struggles  must,  however,  be  under 
the  direction  and  control  of  the  Church.  The  result  has  been  to 
found  a  strictly  Catholic  and  conservative  party  and  to  unite  more 
closely  the  radical-republican-socialist  groups  through  a  common 
anti-clerical  sentiment. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Cesaresco,  M.,  The  Liberation  of  Italy,  London,  1895,  London,  1898. 

Dodd,  W.  E.,  Modern  Constitutions,  2  vols.,  Chicago,  1909. 

Dupriez,  L.,  Les  Ministres  dans  les  principaux  pays  d'Europe  et  L'Ame- 

rique,  2  vols.,  Paris,  1892. 

Godkin,  G.,  Life  of  Victor  Emmanuel  II.,  London,  1880. 
King,  B.,  A  History  of  Italian  Unity,  2  vols.,  London,  1899.     Mozzini, 

London,  1902. 

King  and  Okey,  Italy  To-day. 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe,  2  vols., 

Boston,  1896. 
Ogg,  F.  A.,  The  Governments  of  Europe,  New  York,  1913, 


XII. 

THE   GOVERNMENT   OF   BELGIUM. 


THE  history  of  Belgium  justifies  the  statement  that  it  has  been 
the  battle  ground  of  Europe.  It  has  formed  a  part  of  three  great 
Empires :  those  of  Charlemagne,  of  Charles  the  Fifth,  and  of 
Napoleon.  It  had  been  successively  Spanish,  Austrian,  French, 
and  Dutch,  before  finally  attaining  independence.  From  the  days 
of  Charles  the  Fifth  it  has  had  a  separate  existence.  In  the 
eighteenth  century  the  Austrian  Netherlands  appear  as  a  terri- 
tory distinct  from  the  hereditary  possessions  of  the  Habsburgs> 
and  under  French  dominion,  administration  and  legal  uniformity 
were  gained.  Thus  through  all  the  centuries  and  under  so  many 
different  powers,  the  Belgians  retained  their  identity  and  pre- 
pared the  way  for  political  independence.  By  the  terms  of  the 
Congress  of  Vienna,  there  was  established  the  United  Kingdom 
of  the  Netherlands  with  William  of  Orange  as  sovereign.  The 
Kingdom  was  composed  of  Holland,  the  bishopric  of  Liege,  and 
the  Austrian  Netherlands,  but  the  union  was  from  the  first  an 
unhappy  one.  The  constitution,  drawn  up  in  Holland,  was  re- 
jected by  the  Belgians,  but  was  nevertheless  put  into  operation. 
Dutch  was  made  the  official  language  though  French  was  spoken 
in  a  large  part  of  the  Kingdom.  The  Protestant  Dutch  antago- 
nized the  Catholic  Belgians  and  the  administration  was  more 
favorable  to  the  Dutch  than  to  the  Belgian  provinces. 

The  French  revolution  of  1830  inspired  the  Belgians  to  follow 
a  like  course,  and  a  national  congress  proclaimed  the  independ- 
ence of  Belgium.  A  constitution  was  adopted  February  7,  1831 
and  Leopold  of  Saxe-Coburg  was  chosen  king.  In  spite  of  Dutch 
opposition,  the  conference  of  The  Powers  in  London  in  1831 

432 


THE   GOVERNMENT   OF    BELGIUM.  433 

recognized  the  independence  of  Belgium,  and  Holland  was  forced 
to  acquiesce. 

Plan  of  the  Constitution.  —  The  Belgian  constitution  con- 
sists of  139  articles  divided  into  8  titles  as  follows  :  the  territory 
and  its  divisions  ;  citizens  and  their  rights ;  concerning  powers  ; 
finances ;  the  array ;  general  provisions  ;  revision  of  the  consti- 
tution ;  and  temporary  and  supplementary  provisions.  It  is  in- 
teresting that  the  constitution  contains  no  declaration  of  "  the 
rights  of  man  and  of  citizens,"  but  instead  a  rather  long  list  of 
individual  rights,  guaranteed  by  the  constitution  and  safeguarded 
by  law.  Among  the  constitutional  rights  of  Belgians  may  be 
mentioned  equality  before  the  law  ;  no  distinction  of  classes ;  in- 
dividual liberty  ;  no  arrest  for  longer  than  twenty-four  hours 
without  a  warrant ;  inviolability  of  domicile  and  of  property  ;  re- 
ligious liberty,  freedom  of  the  press,  of  speech,  and  of  assembly, 
and  the  right  of  petition. 

Powers  of  Government.  —  All  power  emanates  from  the 
people  and  can  only  be  exercised  in  the  manner  provided  by  the 
constitution.  The  legislation  is  exercised  collectively  by  the 
King,  the  House  of  Kepresentatives,  and  the  Senate,  each  of 
which  has  the  right  of  initiative ;  but  money  bills  and  laws  relat- 
ing to  the  army  contingent  must  be  voted  first  by  the  House  of 
Representatives. 

The  executive  power  is  vested  in  the  King,  subject  to  the 
provisions  that  his  ministers  are  responsible  and  that  no  decree 
of  the  King  shall  take  effect  unless  it  is  countersigned  by  a  minis- 
ter who  thereby  renders  himself  responsible  for  it. 

The  judicial  power  is  exercised  by  the  courts  and  the  tribunals, 
but  the  authoritative  interpretation  of  the  laws  is  vested  in  the  legis- 
lative power.  Belgian  courts  cannot  declare  laws  unconstitutional 
and  the  legislative  power  is  the  supreme  power  in  the  government. 

Made  under  the  impulse  of  revolution,  the  Belgian  constitution 
was  remarkable  for  its  liberality  and  democracy ;  at  a  time  when 
the  reactionary  forces  were  in  control  in  Europe,  it  represents 
complete  popular  supremacy  and  legislative  omnipotence  under 
the  form  of  a  constitutional  monarchy. 

The  Legislative  Power;   the  Senate.  —  The  country  is 
divided  into  nine  provinces,  and  from  each  province  senators  are 


434  THE   GOVERNMENT    OF    BELGIUM. 

chosen  in  two  ways  :  by  election  according  to  the  population  and 
by  the  provincial  councils,  to  the  number  of  two  for  each  province 
having  less  than  500,000  inhabitants,  of  three  for  each  province 
having  from  500,000  to  1,000,000  inhabitants,  and  of  four  for 
each  province  having  more  than  1,000,000  inhabitants.  The  num- 
ber of  senators  to  be  elected  directly  by  the  voters  shall  be  equal 
to  one  half  the  number  of  members  of  the  House  of  Representa- 
tives. 

Senators  are  elected  for  a  term  of  eight  years,  one  half  being 
elected  every  four  years.  In  case  of  dissolution  the  whole  Senate 
is  renewed.  The  Senate  is  then  divided,  one  half  serving  for  four 
years  and  the  other  for  eight.  The  qualifications  for  senator  are 
Belgian  citizenship  and  residence,  civil  and  political  rights,  the 
payment  of  at  least  1200  francs  direct  taxes  or  the  proprietor  or 
usufructuary  of  real  estate  in  Belgium,  the  assessed  income  of 
which  amounts  to  at  least  12,000  francs.  In  the  provinces  in 
which  those  eligible  do  not  reach  the  proportion  of  one  for  every 
5000  inhabitants,  there  are  added  a  sufficient  number  of  the 
highest  taxpayers  to  make  this  proportion.  In  the  case  of  senators 
elected  by  the  provincial  council,  there  is  no  property  qualification. 
Senators  must  be  at  least  forty  years  of  age ;  they  receive  no 
salary  or  emoluments.  Sons  of  the  King,  or  if  there  be  none,  the 
Belgian  princes  of  the  branch  of  the  royal  family  designated  to 
succeed  to  the  throne,  are  senators  at  the  age  of  eighteen  but  have 
no  vote  until  the  age  of  twenty-five. 

House  of  Representatives.  —  The  members  of  the  House 
are  chosen  by  direct  election  for  a  terra  of  four  years,  one  half 
being  elected  every  two  years.  In  the  event  of  a  dissolution,  the 
whole  House  is  renewed  and  the  members  are  divided  into  two 
groups,  one  of  which  serves  for  two  years  and  the  other  for  four. 

Plural  voting  exists  for  members  both  of  the  House  and  of  the 
Senate.  All  male  citizens  twenty-five  years  of  age  and  resident 
for  one  year  in  the  same  commune  and  not  otherwise  disqualified 
by  law  have  the  suffrage.  An  additional  vote  is  given  all 
married  men,  and  widowers  with  children,  who  have  reached  the 
age  of  thirty-five  and  pay  a  tax  of  not  less  than  five  francs  as 
householders,  unless  exempt  on  account  of  a  profession,  and  like- 
wise to  all  those  who  have  reached  the  age  of  twenty-five,  who 


THE   GOVERNMENT    OF    BELGIUM.  435 

own  real  estate  of  the  value  of  at  least  2000  francs  or  possess  an 
income  from  land  corresponding  to  such  value,  or  are  inscribed  in 
the  great  book  of  the  public  debt  or  possess  obligations  of  the 
Belgian  savings  bank  bearing  at  least  100  francs  interest. 

Two  additional  votes  are  given  to  citizens  who  have  reached 
the  age  of  twenty-five  years  and  who  hold  a  diploma  from  an  in- 
stitution of  higher  instruction  or  a  certificate  showing  the  com- 
pletion of  a  course  of  secondary  education  of  the  higher  degree  or 
who  hold  or  have  held  a  public  office  or  position  or  who  practice 
or  have  practiced  a  private  profession  which  presupposes  at  least 
the  knowledge  imported  in  the  secondary  instruction  of  higher 
degree.  But  no  one  shall  have  more  than  three  votes,  and  voting 
is  obligatory  under  penalties  ranging  from  a  reprimand  and  a  fine 
of  twenty-five  francs  to  a  temporary  deprivation  of  the  right  to 
vote  and  hold  office.  The  system  of  proportional  representation 
is  employed.  The  number  of  representatives  is  fixed  by  law  ac- 
cording to  the  population,  but  must  not  exceed  one  for  every 
40,000  inhabitants. 

Qualifications.  — Members  of  the  House  must  be  Belgian 
citizens,  resident  in  Belgium,  and  in  the  enjoyment  of  civil  and 
political  rights  and  at  least  twenty-five  years  old.  The  compen- 
sation of  members  is  4000  francs  a  year  and  free  transportation  on 
government  railroads  from  the  place  of  residence  to  the  city 
where  the  session  is  held. 

The  King  and  the  Ministers.  —  The  succession  to  the 
throne,  or  rather  to  the  constitutional  powers  of  the  King,  is 
hereditary  in  the  House  of  Saxe-Coburg  according  to  the  Salic 
law.  The  powers  of  the  King  are  limited  to  those  conferred  by 
the  constitution  and  the  laws ;  these  he  can  exercise  only  through 
a  responsible  minister  who  must  countersign  all  his  decrees. 

The  parliamentary  system  of  government  through  responsible 
ministers  is  established  by  the  constitution,  and  powers  conferred 
upon  the  King  are  in  reality  the  powers  of  the  ministers  who  are 
responsible  to  the  House  of  Representatives.  The  King  ap- 
points and  dismisses  the  ministers,  but  he  must  appoint  those  who 
can  secure  support  for  their  policies  from  a  majority  in  the 
House  of  Representatives,  and  he  cannot  in  practice  dismiss  min- 
isters so  long  as  they  enjoy  that  support.  The  King  approves 


436  THE   GOVERNMENT   OF   BELGIUM. 

and  promulgates  the  laws  and  must  issue  all  regulations  and  de- 
crees necessary  for  the  execution  of  the  laws,  but  he  cannot  sus- 
pend or  dispense  with  the  laws.  The  King  commands  the  military 
and  naval  forces,  declares  war,  makes  treaties  of  peace,  alliance, 
and  commerce,  but  treaties  which  may  burden  the  state  or  bind 
Belgians  individually  take  effect  only  after  having  received  the 
approval  of  the  two  Houses. 

The  Houses  meet  annually  the  second  Tuesday  in  November, 
but  the  King  may  summon  them  earlier  ;  he  may  dissolve  one  or 
both  of  the  Houses  and  he  may  adjourn  them,  but  not  for  longer 
than  a  month  and  not  oftener  than  once  in  a  session  without  the 
consent  of  the  Houses. 

The  ministers  are  the  leaders  of  the  majority  in  the  House  of 
Representatives  and  also  the  administrative  heads  of  the  depart- 
ments, of  which  there  are  ten :  Foreign  Affairs  ;  Interior  ;  Science 
and  Arts  ;  Agriculture ;  Industry  and  Labor ;  Justice  ;  Finance  ; 
Public  Works  ;  War ;  and  Railroads.  Ministers  have  the  right  to 
appear  and  be  heard  in  both  Houses  but  can  vote  only  in  the 
House  of  which  they  are  members.  The  Houses  have  the  right 
to  demand  the  presence  of  ministers. 

As  under  other  systems  of  parliamentary  government,  the 
question  and  the  interpellation  are  the  normal  means  by  which 
the  Houses  exercise  control  over  the  government.  The  question 
demands  an  answer  from  the  minister  but  not  a  vote ;  if  a  vote  is 
demanded,  it  becomes  an  interpellation  and  there  is  a  debate, 
followed  by  a  vote. 

Committees.  —  The  House  is  divided  into  six  sections,  re- 
newed every  month  by  lot.  Bills  are  referred  to  the  sections  for 
examination  unless  a  special  committee  is  appointed  for  a  particu- 
lar bill.  Each  section  appoints  a  reporter,  and  the  six  reporters, 
together  with  the  president  of  the  Chamber,  form  the  central 
section,  which  in  turn  appoints  its  reporter.  There  are  two  per- 
manent committees  of  the  House,  elected  by  secret  ballot  at  each 
session  —  a  committee  of  finance  and  accounts  and  a  committee  of 
agriculture,  industry,  and  commerce.  The  House  also  elects 
special  committees  whenever  it  sees  fit,  and  this  is  the  normal 
procedure  in  the  Senate. 

The  Judiciary.  —  The  judicial  system  consists  of  a  Court 


THE   GOVERNMENT  OF   BELGIUM.  437 

of  Cassation  for  the  whole  of  Belgium,  which  sits  at  Brussels.  Its 
members  are  appointed  by  the  King  from  two  lists,  one  presented 
by  the  Court  itself  and  the  other  by  the  Senate.  Below  the 
Court  of  Cassation  are  three  courts  of  appeal,  whose  members  are 
appointed  by  the  King  from  two  lists,  one  presented  by  these 
courts  and  the  other  by  the  provincial  councils.  Next  in  sequence 
come  the  courts  of  first  instance  who  are  appointed  by  the  King, 
but  the  presidents  and  vice-presidents  of  these  courts  are  ap- 
pointed from  two  lists,  one  presented  by  the  courts  and  the  other 
by  the  provincial  council.  In  addition  there  are  courts  of  assizes 
to  hear  criminal  cases,  military  courts,  courts  of  commerce  and 
justices  of  the  peace.  All  judges  are  appointed  for  life  and  no 
judge  shall  be  deprived  of  his  office  or  suspended  till  after  trial 
and  judgment.  Nor  can  they  be  transferred  except  by  a  new  ap- 
pointment and  with  their  consent.  Belgium  differs  from  other 
continental  countries  in  that  it  has  no  administrative  courts  but 
in  this  particular  has  followed  the  English  system. 


XIII 
THE   GOVERNMENTS   OF   GERMANY. 


The  Feudalization  of  Germany  was  in  some  points  strongly 
contrasted  with  the  feudalization  of  France.  There  was  in  Ger- 
many no  Romanized  subject  population  such  as  existed  in  Gaul, 
with  habits  which  should  enter  like  a  leaven  into  the  polity  of 
their  conquerors.  Beyond  the  Rhine  all  were  of  one  general 
kin,  all  bred  to  the  same  general  customs.  What  was  new 
there  was  the  great  Frankish  kingship  of  Merowingian  and 
Carolingian,  —  the  new  size  and  potency  of  the  regal  power  bred 
amidst  the  readjustments  of  conquering  migration  by  the  domi- 
nant Franks.  For  the  rest,  there  was  at  first  the  old  grouping 
about  elective  or  hereditary  princes,  the  old  tribal  individualities 
of  custom,  the  old  organization  into  separate,  semi-independent, 
self-governing  communities.  Feudalism  came,  not  so  much 
through  fresh  gifts  of  land  and  novel  growths  of  privilege  based 
upon  such  fresh  gifts,  not  so  much  through  'benefice  '  and  ' com- 
mendation '  (pages  104-106,  108),  as  through  the  official  organiza- 
tion of  the  Frankish  monarchy. 

Official  System  of  the  Frankish  Monarchy :  the  Counts.  — 
In  order  to  exercise  their  kingly  powers  the  more  effectually,  the 
Frankish  monarchs  adopted  the  natural  plan,  for  which  there  was 
Roman  precedent,  of  delegating  their  functions  to  officers  com- 
missioned to  act  as  their  representatives  in  various  districts  of 
their  extensive  domains.  There  does  not  seem  to  have  been  any 
symmetrical  division  of  the  territory  into  districts  to  fit  the  official 
system.  Here  and  there  there  were  counts  (Graferi),  the  king's 
vicegerents  in  the  exercise  of  the  financial,  judicial,  and  military 
prerogatives  of  overlordship;  but  the  limits  of  their  jurisdiction 
were  not  always  sharply  defined.  There  were,  for  one  thing, 

438 


THE   GOVERNMENTS   OF   GERMANY.  439 

many  exemptions  from  their  authority  within  the  general  dis- 
tricts allotted  them.  There  were  the  dignity  and  pretensions 
of  provincial  princes  to  be  respected,  more  important  still,  there 
were  the  claims  of  the  great  landowners  to  a  special  jurisdiction 
and  independent  lordship  of  their  own  to  be  regarded.  As  a 
matter  of  policy  such  claims  were  generally  allowed.  The 
demesnes  of  the  greater  landowners  were  cut  out  from  the  ad- 
ministrative territory  of  the  count  and  given  separate  political 
functions.  Barons,  such  as  we  have  seen  in  France,  —  local 
autocrats  with  law  courts  and  a  petty  sovereignty  of  their  own, 
—  were  freely  created.  The  king  apparently  could  not  deny 
them  the  '  immunities '  they  demanded. 

The  Magistracy  of  Office  and  the  Magistracy  of  Proprietor- 
ship. —  There  thus  grew  up,  side  by  side,  a  double  magistracy  — 
a  magistracy  of  office  and  a  magistracy  of  proprietorship.  The 
count  ruled  by  virtue  of  his  office ;  the  baron  by  virtue  of  his 
landed  possessions :  there  were  lords  by  privilege,  and  lords  by 
commission.  As  time  went  on  the  two  sets  of  magnates  drew 
nearer  and  nearer  to  the  possession  of  a  common  character 
through  an  interchange  of  qualities.  The  office  of  count  tended 
more  and  more  to  become  hereditary  and  to  connect  itself  with 
the  ownership  of  large  estates.  Heredity  of  title  and  prerogative 
was  the  almost  irresistible  fashion  of  the  age :  the  men  of  great- 
est individual  consequence,  besides,  —  the  men  who  were  fit  be- 
cause of  their  individual  weight  to  be  delegated  to  exercise  the 
royal  authority,  —  were  commonly  the  men  of  large  properties. 
Either  there  went,  therefore,  along  with  the  grafship,  gifts  of 
land,  or  else  men  already  sufficiently  endowed  with  lands  were 
given  the  grafship :  and  as  the  office  connected  itself  with  pro- 
prietorship it  took  from  proprietorship  its  invariable  quality  of 
heredity.  This  was  the  double  process :  counts  became  heredi- 
tary territorial  lords ;  and  hereditary  territorial  lords  acquired 
either  the  grafship  itself  or  powers  quite  as  great. 

Hereditary  Chiefs.  —  Add  to  this  hierarchy  the  more 
ancient  dukes  of  the  tribes,  and  the  tale  of  greater  lords  is  com- 
plete. These  dukes  were,  by  traditional  title  at  least,  rulers 
of  the  once  self-governing  communities  which  Frankish  ascen- 
dency had  in  the  days  of  conquest  united  under  a  common  author- 


440  THE   GOVERNMENTS   OF   GERMANY. 

ity.  In  many  cases,  no  doubt,  they  retained  a  vital  local  sway. 
They  were  intermediate,  in  the  new  political  order,  between  the 
king  and  the  barons. 

Full  Development  of  Territorial  Sovereignty.  —  By  the 
thirteenth  century  German  feudalization  was  complete.  Dukes, 
counts,  and  barons  had  all  alike  become  lords  within  their  own 
territories  (Landesherren).  Bishops  and  abbots,  too,  as  in  France, 
had  entered  the  competition  for  power  and  become  themselves 
counts  and  barons.  That  territorial  sovereignty,  that  private 
ownership  of  political  authority  which  is  the  distinguishing  mark 
of  feudalism,  and  which  we  have  seen  so  fully  developed  in 
France,  is  present  in  as  full  development  here  in  Germany  also. 
But  the  elements  of  the  development  are  very  different  in  the 
two  countries.  In  France  we  have  seen  the  appointment  of  royal 
delegates  come  after  the  perfecting  of  feudalism  and  lead,  through 
the  gradual  concentration  of  judicial  and  other  authority  in  the 
king's  hands,  to  the  undermining  and  final  overthrow  of  baronial 
sovereignty  (pp.  195,  197).  In  Germany,  on  the  contrary,  the 
royal  representatives,  appointed  while  feudalism  was  taking  shape, 
themselves  entered  and  strengthened  the  baronage,  quitting  their 
dependent  functions  as  officials  for  the  independent  privileges 
of  territorial  lords. 

The  Markgraf .  —  One  office  especially  fostered  feudal  in- 
dependence in  Germany.  Outside  the  hierarchy  I  have  described, 
and  standing  in  special  relations  with  the  king,  was  the  Mark- 
graf, —  the  count  of  the  march  or  border,  set  to  defend  the  king- 
dom against  inroads  by  hostile  peoples.  He  was  of  course  chosen 
chiefly  because  of  his  capacity  in  war,  and  was  of  the  most  im- 
perative, masterful  soldier  breed  of  the  times.  To  him,  too,  were 
necessarily  vouchsafed  from  the  first  extraordinary  powers.  He 
was  made  virtual  dictator  in  the  unsettled,  ill-ordered  border  dis- 
trict which  he  was  appointed  to  hold  against  foreign  attack ;  and 
he  was  freely  given  all  the  territory  he  could  conquer  and  bring 
under  the  nominal  authority  of  the  king.  It  was  thus  that  the 
Mark  Brandenburg  spread  itself  out  to  the  northeast,  to  become 
at  last  a  great  kingdom,  and  that  the  Ostmark,  established  by 
Charles  the  Great  as  a  barrier  against  the  Hungarians,  increased 
till  it  became  the  great  state  of  Austria.  The  Markgraf  was  not 


THE  GOVERNMENTS  OF  GERMANY.         44^ 

long  in  becoming  virtually  a  ruler  in  his  own  right,  little  dis- 
turbed by  the  nominal  suzerainty  of  a  distant  monarch,  and  pos- 
sessed by  fast  hereditary  right  of  the  titles  and  powers  which 
would  one  day  make  of  him  a  veritable  king. 

The  Empire.  —  Charles  the  Great  set  for  his  successors 
the  example  of  a  wide  rule  and  a  Roman  title.  But  for  many 
a  long  age  it  seemed  as  if  he  had  left  behind  him  nothing  but  a 
tradition  and  a  scheme  of  power  which  no  man  was  able  to  take 
up.  His  great  empire  fell  to  pieces,  never  to  be  put  together 
again,  except  as  it  seemed  to  rise  once  more  for  a  little  space  in 
the  days  of  Charles  V.  Even  the  greater  fragments  of  it  fell 
apart  beyond  the  Khine,  shattered  by  the  disintegrating  forces 
of  feudalism.  But  the  name  and  shadow  of  the  imperial  power 
persisted  from  age  to  age  with  a  strange  vitality.  First  a  line 
of  Saxon  princes,  then  men  of  the  Franconian  house,  after  them 
the  masterful  Hohenstaufen  essayed  the  office  Charles  had  made 
great,  wielding  such  authority  as  they  could  as  power  came  and 
vent  amidst  the  shifting  scene  of  German  politics.  Finally  the 
succession  fell  to  the  house  of  Habsburg,  who  were  building  a 
veritable  kingdom  together  upon  the  southern  skirts  of  Germany, 
where  the  Ostmark  had  grown  to  be  Austria.  As  their  strength 
increased,  their  presidency  amidst  the  German  states  became  an 
unmistakable  power  of  command,  and  Germany  had  at  last  a 
leader,  if  not  a  master. 

The  Imperial  Cities.  —  While  the  imperial  power  lan- 
guished a  notable  thing  happened.  Germany  gave  birth  to  great 
free  cities,  set  like  independent  states  in  the  midst  of  their  weak 
neighbors.  The  cities  of  the  Empire  had,  as  feudalism  devel- 
oped, fallen  into  its  order  in  two  classes.  Some  of  them  held 
their  privileges  of  the  Emperor  himself,  were  his  immediate  vas- 
sals ;  others  were  subordinated  to  some  feudal  lord  and  were  sub- 
jects of  the  Empire  only  through  him.  The  position  of  those 
immediately  dependent  upon  the  Emperor  was  much  more  advan- 
tageous than  the  position  of  those  who  had  lesser  and  nearer 
masters.  The  imperial  supervision  was  apt  to  be  much  less 
exacting  than  the  overlordship  of  princes  who,  having  less  wide 
interests  to  care  for  than  those  which  busied  the  Emperor,  could 
render  their  power  greater  by  concentration.  They  were  always 


442  THE  GOVERNMENTS   OF   GERMANY. 

near  at  hand  and  jealous  of  any  movement  of  independence  on  the 
part  of  the  towns  within  their  domain ;  the  Emperor,  on  the  other 
hand,  was  often  far  away  and  never  by  possibility  so  watchful. 
He  was  represented  always  by  some  deputy;  but  the  presence 
of  this  officer  did  not  greatly  curtail  municipal  self-government. 
In  the  thirteenth  century  even  this  degree  of  control  was  got 
rid  of  at  the  suit  of  some  of  the  cities.  They  were  allowed  to 
become  'free '  imperial  cities,  bound  to  the  Emperor  only  by 
sworn  allegiance,  not  by  any  bonds  of  actual  government.  The 
next  step  in  the  acknowledgment  of  their  independence  and  im- 
portance was  their  admission  to  representation  in  the  Diet  of  the 
Empire,  —  and  such  recognition  was  not  long  delayed.  The  role 
of  these  great  free  cities  o  imperial  affairs  became  one  of  the 
most  important  of  the  many  independent  roles  played  on  the 
confused  stage  of  that  troubled  time.  Lu'beck, .  Hamburg,  and 
Bremen  retain  to  this  day  a  certain  privilege  of  position  as  free 
cities  in  the  German  Empire. 

484.  The  Swiss  Confederation.  —  Almost  at  the  very  time  that 
the  Habsburgs  first  won  the  imperial  crown  and  acquired  the  duchy  of 
Austria,  some  of  their  Swiss  dependencies  broke  away  from  them,  and 
established  an  independence  never  since  permanently  broken.  Schwyz, 
Uri,  and  Unterwalden,  the  sturdy  little  mountain  communities  grouped 
about  the  southern  end  of  quiet  Lucerne,  with  whose  struggle  for  freedom 
the  glorious  story  of  the  Swiss  Confederation  begins,  contained  some  part 
of  the  estates  of  the  Counts  of  Habsburg,  whose  hereditary  domainr 
touched  the  other  end  of  Lucerne,  and  stretched  wide  to  the  north  about 
the  further  shore  of  Lake  Geneva,  and  southward  again  on  the  West.  The 
region  of  the  Alps  contained  the  notable  imperial  cities  of  Zurich,  Berne, 
Basle,  and  Schaffhausen ;  and  Schwyz,  Uri,  and  Unterwalden  claimed  to 
be  immediate  vassals  of  the  Emperor,  as  these  cities  were.  The  Counts 
of  Habsburg,  in  despite  of  this  claim,  sought  to  reduce  them  to  submission 
to  themselves.  The  result  was  a  long  struggle  in  which  the  three  littL 
cantons,  at  first  joined  only  by  their  neighbor  canton,  Lucerne,  but  after- 
wards by  Zurich,  Glarus,  Zug,  and  Berne,  were  eventually  completely 
victorious.  By  the  formation  of  this  famous  league  of  free  cantons  and 
cities,  at  first  known  as  the  "  Old  League  of  High  Germany,"  but  ulti- 
mately as  Switzerland  (the  land  of  Schwyz),  there  emerged  from  the 
German  Empire  one  of  the  most  interesting  states  known  to  history.  It 
may  be  said  to  have  been  the  offspring  of  the  disintegrating  forces  of  the 
Empire,  —  a  living  proof  of  its  incoherence. 


THE   GOVERNMENTS   OF   GERMANY.  443 

Austria's  Rival,  Prussia. — While  Austria's  power  was  on 
the  make  a  formidable  rival  had  grown  up  in  the  north,  out  of 
the  North  Mark  established  in  the  tenth  century  as  the  Empire's 
barrier  against  the  Wends.  Men  of  energy  and  daring  had 
steadily  pushed  forward  the  eastern  boundaries  of  the  Mark  until 
it  had  become  a  great  territory,  the  Mark  Brandenburg.  In  the 
fifteenth  century  the  markgrafship  fell  into  the  hands  of  a  race 
more  capable  than  the  Habsburgs,  the  Hohenzollerns  of  Nurem- 
berg. Under  them  it  waxed  greater  yet  alike  in  territory  and  in 
organized  power :  took  in  Prussia,  the  district  from  which  it 
was  to  get  its  later  name,  and  got  ready  for  the  role  it  was  to 
play  in  the  seventeenth,  eighteenth,  and  nineteenth  centuries. 
In  1640  Frederic  William,  the  Great  Elector  (1640-1688),  came 
upon  the  stage,  to  make  his  power  a  determining  element  in 
the  politics  of  Europe.  His  son  was  Frederic,  the  first  t  king  in 
Prussia.' 

Frederic  the  Great.  —  Frederic,  the  first  king  of  Prussia, 
governed  from  1688  to  1713.  His  son,  Frederic  William  I. 
(1713-1740),  rounded  out  Brandenburg's  possessions  and  hoarded 
the  money  and  prepared  the  army  with  which  his  son,  Frederic 
the  Great  (1740-1786),  was  to  complete  the  greatness  of  Prussia. 
Frederic  took  Silesia  from  Austria,  and  then,  joining  in  the 
heartless  and  scandalous  partition  of  Poland  in  1772,  filled  up  the 
gap  between  Brandenburg  and  East  Prussia  with  West  Prussia 
and  the  Netze  district.  The  second  and  third  partitions  of  friend- 
less Poland  in  1793  and  1795  added  to  Prussia  the  district  now 
known  as  Posen  and  a  part  of  East  Prussia. 

Prussia  was  at  last  ready  for  her  final  rivalry  with  Austria  for 
the  leadership  of  Germany.  But  first  there  was  to  be  the  great 
storm  of  the  Napoleonic  wars,  which  was  to  sweep  away  so  much 
that  was  old  in  German  political  arrangements,  and  create  the 
proper  atmospheric  conditions  for  German  nationality. 

Napoleon:  the  Confederacy  of  the  Rhine.  —  One  of  the 
earliest  acts  of  Napoleon  in  his  contest  with  Austria  and  Prussia 
was  to  isolate  these  two  great  German  states  by  thrusting  between 
them  a  barrier  of  smaller  German  states  attached  to  the  French 
interest.  So  little  coherent  was  Germany,  so  little  had  the  Em- 
pire made  of  the  Germans  a  single  nation,  that  Napoleon  was 


444  THE    GOVERNMENTS    OF    GERMANY. 

able  to  detach  from  all  alliance  with  either  Austria  or  Prussia 
every  one  of  the  German  states  except  Brunswick  and  the  elec- 
torate of  Hesse.  Of  these  the  chief  were  the  kingdoms  of  Bavaria 
and  Wurttemberg  and  the  grand-duchy  of  Baden.  Napoleon 
organized  out  of  these  allies  the  so-called  'Confederacy  of  the 
Rhine,'  of  which  he  constituted  himself  ' Protector,'  and  which 
lasted  from  1806  till  1813. 

The  year  1806  had  marked  also  the  formal  end  of  the 
'  Holy  Koman  Empire '  over  which  the  Habsburgs  had  so  long 
presided.  The  eighteenth  century  had  witnessed  a  notable  de- 
cline in  their  power;  the  sweeping  conquests  of  Napoleon  put 
them  at  his  mercy;  and  in  1806  Francis  of  Austria  was  forced  to 
abdicate  and  forever  renounce  the  imperial  office.  There  was  no 
more  to  be  a  German  Empire  till  Prussia  should  draw  one  about 
her,  and  Austria  be  once  for  all  ousted  from  her  place  of  leader- 
ship in  Germany. 

The  German  Confederation  (1815-1866).  —  Despite  the 
ease  with  which  he  at  first  divided  Germany  in  order  to  conquer 
it,  Napoleon  discovered  at  last  that  he  had  himself  aroused  there 
a  national  feeling  which  was  to  cast  him  out  and  ruin  him.  In 
1813  Germany  rose,  the  Confederacy  of  the  Rhine  went  to  pieces, 
and  all  Napoleon's  plans  were  undone.  He  had  done  Germany 
the  inestimable  service  of  making  her  patriotic.  The  Congress 
of  Vienna,  which  met  at  the  close  of  the  Napoleonic  wars  to 
recompose  Europe,  could  not  revivify  the  German  Empire :  that 
had  been  dead  for  some  time  before  Napoleon  forced  a  winding 
up  of  its  affairs.  But  Germany  was  not  to  remain  disintegrate. 
The  year  1815  witnessed  the  formation  of  a  new  union  of  the  Ger- 
man states,  the  German  Confederation,  which,  loose  as  it  seemed, 
held  them  more  closely  together  than  they  had  been  held  for  many 
generations.  Austria  was  the  president  of  the  Confederation. 
The  organ  of  government  was  a  Diet  of  ambassadors  from  the 
thirty-nine  component  states  (kingdoms,  duchies,  cities,  princi- 
palities) authorized  to  mediate  between  the  states  in  all  matters 
of  common  concern;  and  the  Confederation  maintained  an  army 
of  thirty  thousand  men.  The  arrangement  was  little  enough  like 
national  union :  the  large  states  had  a  preponderant  representation 
in  the  Diet,  Austria  dominating  all ;  and  each  state,  whether  great 


THE   GOVERNMENTS    OF    GERMANY.  445 

or  small,  was  suffered  to  go  its  own  way,  make  its  own  alliances, 
and  fight  its  own  wars,  if  only  it  refrained  from  injuring  any  one 
of  the  Confederates  or  the  interests  of  the  Confederation.  But 
there  was  sufficient  cohesion  to  keep  the  states  together  while 
German  national  feeling  grew,  and  while  the  political  revolutions 
of  the  century  (1830  and  1848)  liberalized  political  institutions. 

Period  of  Constitutional  Reform.  —  By  1848  most  of  the 
German  states,  except  Prussia,  granted  constitutions  to  their 
people.  In  the  same  year  a  '  German  National  Parliament '  met 
at  Frankfort  (the  seat  of  the  Diet  of  the  Confederation)  and 
attempted  to  formulate  a  plan  for  more  perfect  union  under  the 
leadership  of  Prussia ;  but  its  leaders  proposed  much  more  than 
was  possible,  the  time  was  not  yet  ripe,  and  the  attempt  failed. 
Still  earlier,  in  1833,  Prussia  had  led  in  the  formation  of  a  '  Cus- 
toms Union'  (Zollverein)  between  herself  and  all1  the  states  of 
the  Confederation  except  Austria,  which  laid  a  free-trade  basis  for 
those  subsequent  political  arrangements  from  which  also  Austria 
was  to  be  excluded.  In  1850  Prussia  received  from  the  hands  of 
her  king  the  forms,  at  least,  of  a  liberal  government,  with  parlia- 
mentary institutions. 

The  North  German  Confederation  (1867-1871).  —  Finally, 
in  1866,  came  the  open  breach  between  Prussia  and  Austria. 
The  result  was  a  six  weeks'  war  in  which  Austria  was  completely 
defeated  and  humiliated.  The  Confederation  of  1815  fell  to 
pieces  ;  Prussia  drew  about  her  the  Protestant  states  of  Northern 
Germany  in  a  '  North  German  Confederation ' ;  the  middle  states, 
Bavaria,  Wurttemberg,  Baden,  etc.,  held  off  for  a  while  to  them- 
selves ;  and  Austria  found  herself  finally  excluded  from  German 
political  arrangements. 

Austria  out  of  Germany.  —  Thereafter  Austria,  originally 
predominantly  German,  devoted  herself  to  the  fruitless  task  of 
amalgamating  the  various  nationalities  of  Southeast  Europe  under 
her  hegemony,  and  so  became  in  large  part  a  non-German  state. 
Prussia  became  the  head  and  front  of  Germany,  in  her  stead. 
Meantime  Prussia  has  grown  more  than  one-fifth  in  territory. 
The  rearrangement  at  Vienna  in  1815  gave  her  Swedish  Pom- 
merania  and  the  northern  half  of  Saxony ;  the  war  of  1866  gained 
1  The  Union  did  not  at  first  include  this  '  all,'  but  it  did  eventually. 


446  THE   GOVERNMENTS    OF    GERMANY. 

for  her  the  possession  of  Schleswig-Holstein,  Hannover,  Hesse- 
Cassel,  Hesse-Nassau,  and  Frankfort. 

The  German  Empire.  —  The  finishing  impulse  was  given 
to  the  new  processes  of  union  by  the  Franco-Prussian  war  of 
1870-1871.  Prussia's  successes  in  that  contest,  won,  as  it  seemed, 
in  the  interest  of  German  patriotism,  broke  the  coldness  of  the 
middle  states  towards  their  great  northern  neighbor ;  they  joined 
the  rest  of  Germany ;  and  the  German  Empire  was  formed 
(Palace  of  Versailles,  January  18,  1871). 

GOVERNMENT  OF  THE  EMPIRE. 

Austria  and  Germany:  Character  of  the  German  Empire. 
—  When  he  ceased  to  be  Emperor  of  the  Holy  Roman  Empire 
(1806),  Francis  I.  still  remained  Emperor  of  Austria.  He  had 
assumed  that  title  in  1804 ;  and  there  became  in  full  form,  — 
what  there  had  long  been  in  reality,  —  an  Austrian  Empire.  In 
1871  there  arose  by  its  side  a  new  German  Empire,  but  the  two 
empires  were  thoroughly  unlike  one  another.  The  Austrian 
Empire,  though  wearing  the  form  of  a  dual  monarchy  as  Austria- 
Hungary,  was  composed  of  the  hereditary  possessions  of  the 
House  of  Habsburg;  the  German  Empire,  on  the  other  hand, 
was  a  federal  state  composed  of  four  kingdoms,  six  grand-duchies, 
five  duchies,  seven  principalities,  three  free  cities,  and  the  im- 
perial domain  of  Alsace-Lorraine,  these  lands  being  united  in  a 
great  '  corporation  of  public  law '  under  the  hereditary  presidency 
of  the  king  of  Prussia  as  German  Emperor. 

The  four  kingdoms  were  Prussia,  Bavaria,  Saxony,  and  Wtlrt- 
temberg ;  the  grand-duchies,  Baden,  Hesse,  Mecklenburg-Schwerin, 
Saxe-Weimar,  Oldenburg,  and  Mecklenburg-Strelitz  ;  the  duchies, 
Brunswick,  Saxe-Meiningen,  Anhalt,  Saxe-Coburg,  and  Saxe-Alten- 
burg ;  the  principalities,  Waldeck,  Lippe,  Schwarzburg-Kudolstadt, 
Schwarzburg-Sondershausen,  Eeuss-elder  line,  Schaumberg-Lippe, 
and  Reuss-younger  line ;  the  free  cities,  Hamburg,  Ltibeck,  and 
Bremen. 

The  Central  German  States  and  the  Empire.  —  The  first 
step  towards  the  new  union  was  taken  in  1870,  when  Baden, 
Bavaria,  and  Wurttemberg,  fearing  that  the  object  of  Napoleon 


THE   GOVERNMENTS    OF   GERMANY.  447 

III.  was  to  conquer  the  central  German  states  or  renew  the  Con- 
federation of  the  Rhine,  decisively  espoused  the  side  of  Prussia 
and  the  North  German  Confederation.  While  the  siege  of  Paris 
was  in  progress  these  three  states  sent  delegates  to  King  William 
at  Versailles  and  formally  united  themselves  with  their  northern 
compatriots :  the  North  German  Confederation  became  the  Ger- 
man Confederation,  with  King  William  as  president.  Almost 
immediately,  thereafter,  the  influences  of  the  time  carried  the  Con- 
federates a  step  farther  :  the  president-king  was  crowned  Emperor, 
and  the  German  Confederation  became  the  German  Empire.1 

The  Character  of  the  Empire.  —  These  changes  of  mem- 
bership and  of  title  did  not,  however,  change  the  character  or,  at 
first,  the  constitution  of  the  union.  It  remained  a  federal  state, 
and  the  king  of  Prussia  was  still  its  president  only ;  he  was  not 
its  monarch.  Its  make-up  and  powers  were  not  radically  altered. 
Prussia,  indeed,  was  very  great :  in  territory  nearly  three  times 
as  large  as  all  the  other  states  of  the  union  put  together,  her 
population  three-fifths  that  of  all  Germany ;  and  the  king  of 
Prussia  had  other  means  of  mastery  than  those  afforded  by  the 
law.  But  as  Emperor  he  occupied  not  an  hereditary  throne,  but 
only  an  hereditary  office.  Sovereignty  did  not  reside  in  him, 
but  "  in  the  union  of  German  federal  princes  and  the  free  cities." 
He  was  the  chief  officer  of  a  great  political  corporation,  whose 
object  it  was  to  "  form  an  eternal  union  for  the  protection  of  the 
realm  and  the  care  of  the  welfare  of  the  German  people." 

The  Emperor.  —  Still  his  constitutional  prerogatives  were 
of  the  most  eminent  kind.  He  was  irresponsible  :  he  could  not  be 
removed,  his  office  belonging  inalienably  to  the  throne  of  Prussia. 
He  summoned,  opened,  adjourned,  and  closed  the  two  Houses 
of  the  federal  legislature,  the  Bundesrat  and  the  Reichstag,  the 
latter  of  which  he  could  also,  with  the  consent  of  the  Bundesrat, 
dissolve.  He  appointed,  and  might  at  his  pleasure  remove,  the 
Imperial  Chancellor,  who  was  both  the  vital  centre  of  all  impe- 
rial administration  and  the  chairman  of  the  Bundesrat ;  and  he 
appointed  also,  under  the  countersignature  of  the  Chancellor,  all 
minor  officers  of  the  imperial  service,  whom,  with  a  like  coopera- 
tion of  the  Chancellor,  he  might  also  dismiss.  He  controlled  the 

1  The  constitution  of  the  Empire  bears  date  April  16,  1871. 


448  THE   GOVERNMENTS   OF   GERMANY. 

foreign  affairs  of  the  Empire  and  commanded  its  vast  military 
forces ;  and  in  this  latter  capacity,  of  commander-in-chief  of  the 
imperial  army,  it  rested  with  him,  acting  at  the  suggestion  of  the 
Bundesrat)  to  coerce  into  obedience  such  states  of  the  Empire 
as  might  at  any  time  wilfully  and  pertinaciously  neglect  to  fulfil 
their  federal  duties.  He  had,  in  brief,  to  the  fullest  extent,  both 
the  executive  and  the  representative  functions  now  characteristic 
of  the  head  of  a  powerful  constitutional  state.  There  were  dis- 
tinct limits  to  his  power  as  Emperor,  limits  which  marked  and 
emphasized  the  federal  character  of  the  Empire ;  but  those  limits 
nevertheless  lay  abundantly  wide  apart.  Adding,  as  he  did,  to 
his  powers  as  hereditary  president  of  the  Empire  his  command- 
ing privileges  as  king  of  Prussia  and,  as  king  of  Prussia,  the 
dominant  member  of  the  Union,  he  possessed  no  slight  claim  to 
be  regarded  as  the  most  powerful  ruler  of  our  time. 

Sovereignty  of  the  Empire  in  Legislation.  —  So  complete, 
so  unlike  that  of  a  mere  confederation,  was  the  union  of  German 
states  that  the  sovereign  legislative  power  of  the  Empire  was 
almost  unlimited.  The  constitution  could  be  amended  by  the 
federal  legislature ;  amendment  might  change  all  the  existing 
allotments  of  power  as  between  the  federal  and  the  state  govern- 
ments ;  powers  reserved  to  the  states  could,  except  in  one  or  two 
instances  in  which  they  were  explicitly  guaranteed,  be  withdrawn 
from  them  without  their  consent.  The  individual  states  virtually 
retained  their  general  rights  "  only  by  sufferance  of  the  Empire." 1 
Amendments  of  the  constitution  were  not  submitted  either  to  the 
people  or  to  the  governments  of  the  states :  nor  were  they  passed 
by  any  special  or  peculiar  procedure,  as  in  France  (p.  401).  They 
were  originated  and  acted  upon  as  ordinary  laws  would  be.  The 
only  limitations  put  upon  their  passage  were,  first,  that  fourteen 
negative  votes  in  the  Bundesrat  would  defeat  a  proposed  amend- 
ment, and,  second,  that  no  state  could  be  deprived  of  any  right 
guaranteed  to  it  by  the  constitution,  without  its  own  consent. 
From  the  first  the  legislative  power  of  the  Empire  covered  the 
entire  field  of  the  law  of  contracts,  of  commercial  law,  and  of 
criminal  law  ;  and  by  an  amendment  of  December  20, 1873,  it  was 

1  Laband,  Das  Staatsrecht  des  deutschen  Belches  (Marquardsen's  Hand- 
buck^  p.  22. 


THE  GOVERNMENTS   OF   GERMANY.  449 

extended  to  the  whole  field  of  civil  law  as  well.  For  some  time 
it  did  not  exercise  its  power  over  the  whole  domain  of  these  great 
subjects,  but  it  later  enacted,  besides  full  codes  of  commercial  and 
criminal  law,  an  exhaustive  civil  code  which  brought  practically  all 
of  private  law  under  the  statutes  of  the  imperial  government. 

The  Bundesrat :  its  Composition  and  Character.  —  The 
central  and  characteristic  organ  of  the  Empire  was  the  Bundesrat, 
the  Federal  Council,  which  was  alike  in  make-up  and  function, 
the  lineal  successor  of  the  Diet  of  the  older  Confederation.  In 
form,  in  theory,  and  indeed  in  fact,  the  Bundesrat  was  a  body  of 
ambassadors.  Its  members  represented  the  governments  of  the 
states  from  which  they  came,  and  were  accredited  to  the  Emperor 
as  diplomatic  agents,  plenipotentiary  charges  d'affaires,  to  whom 
he  must  extend  the  same  protection  that  was  extended  to  the  like 
representatives  of  foreign  states.  It  was  a  fundamental  conception 
of  the  German  constitution  that  "  the  body  of  German  sovereigns 
together  with  the  senates  of  the  three  free  cities,  considered  as  a 
unit,  —  tanquam  unum  corpus,  —  is  the  repository  of  imperial 
sovereignty " ; l  and  the  Bundesrat  was  the  organ  of  this  body. 
It  was  therefore  the  organ  through  which  the  sovereignty  of  the 
Empire  was  expressed.  The  Emperor  did  not  exercise  sovereignty : 
he  only  shared  it  as  king  of  Prussia,  so  far  as  the  Empire  was  con- 
cerned, and  took  part  in  its  exercise  only  through  the  Prussian 
members  of  the  Bundesrat.  It  followed,  of  course,  from  this  prin- 
ciple that  the  members  of  the  Bundesrat  were  only  the  agents  of 
their  governments,  and  acted  under  instructions  from  them,  making 
regular  reports  of  the  proceedings  of  the  Bundesrat  to  their  home 
administrations.  The  votes  of  a  state  were  valid,  whether  cast  by 
its  representatives  in  accordance  with  their  instructions  or  not ; 
but  the  delegates  were  responsible  for  every  breach  of  instructions 
to  their  home  authorities.  In  practice  they  were  generally  them- 
selves members  of  the  governments  they  represented,  entrusted 
also  with  high  administrative  functions  at  home,  and  represent- 
ing their  governments  in  the  local  legislative  bodies  of  their  own 
states,  as  well  as  in  the  Bundesrat.  The  Bundesrat  was  thus 
used,  as  it  was  intended  to  be,  and  as  it  was  used  under  the  some- 
what looser  forms  of  the  earlier  Confederation,  as  a  body  of  con^ 

1  Laband,  p.  40. 


450  THE  GOVERNMENTS   OF   GERMANY. 

sultation  and  guidance,  a  larger  sort  of  imperial  cabinet,  in  which 
the  responsible  ministers  of  the  several  states  drew  together  to 
determine  all  questions  of  general  interest,  whether  they  affected 
the  making  or  the  administration  of  the  laws. 

Representation  of  the  States  in  the  Bundesrat.  —  The 
states  of  the  Empire  were  unequally  represented,  according  to 
their  size.  Prussia  had  seventeen  votes ;  Bavaria  six ;  Saxony 
and  Wiirttemberg  four  each ;  Baden,  Hesse  and  Alsace-Lorraine,1 
each  three ;  Mecklenburg-Schwerin  and  Brunswick  each  two ; 
the  other  seventeen  states  one  apiece.  The  votes  of  each  state 
which  was  entitled  to  more  than  one  vote  were  cast  together  as  a 
unit,  and  each  such  state  could  cast  her  full  vote  whether  or  not 
it  had  its  full  number  of  representatives  present. 

Members  were  sent  and  withdrawn  at  the  pleasure  of  their 
respective  governments,  like  the  responsible  agents  they  were ; 
and  their  constant  responsibility  made  formal  instruction  as  to 
their  votes  upon  particular  measures  for  the  most  part  un- 
necessary. The  smaller  states  found  the  duty  of  maintaining 
representatives  at  times  very  onerous ;  and,  inasmuch  as  it  was 
not  required  by  law  that  their  delegates  should  be  chosen  from 
among  their  own  citizens,  it  became  a  common  practice  for  them 
to  serve  economy  and  their  own  convenience  by  combining  to 
maintain  joint  representatives.  Groups  of  them  combined,  and 
each  group  delegated  its  powers  to  a  single  person,  who  was 
authorized  to  represent  them  severally. 

The  significance  of  the  constitutional  provision  that  amend- 
ments to  the  constitution  could  not  pass  even  if  there  be  fourteen 
negative  votes  cast  in  the  Bundesrat  is  quite  evident.  A  com- 
bination of  the  small  states  could  in  theory  defeat  any  organic 
change  of  law  proposed  by  the  large  states ;  and  Prussia  alone 
could  bar  any  amendment  to  which  she  was  opposed.  The  seven- 
teen votes  of  Prussia  on  the  one  side  and  the  seventeen  votes  of 
the  small  states  on  the  other  might  be  said,  were  there  any  real 
offset  to  the  power  of  Prussia,  to  have  constituted  the  central 
balance  of  the  system,  but  the  control  by  Prussia  of  the  four 
additional  votes  destroyed  even  the  semblance  of  a  balance. 

1  The  one  vote  of  Waldeck  was  permanently  in  the  hands  of  the  King  of 
Prussia  and  the  three  votes  of  Alsace-Lorraine  were  controlled  by  Prussia. 


THE   GOVERNMENTS   OF   GERMANY.  451 

Functions  of  the  Bundesrat.  —  The  Bundesrat  occupied  a 
position  in  the  German  system  in  some  respects  not  unlike  that 
which  the  Roman  Senate  held  in  the  government  of  Rome.  It 
was,  so  to  say,  the  residuary  legatee  of  the  constitution.'  All 
functions  not  speciiically  entrusted  to  any  other  constitutional 
authority  remained  with  it,  and  no  power  was  in  principle 
foreign  to  its  jurisdiction.  It  had  a  composite  character,  and 
was  the  presiding  organ  of  the  Empire.  It  was  at  one  and  the 
same  time  an  administrative,  a  legislative,  and  a  judicial  body. 

In  its  legislative  capacity,  it  presided  over  the  whole  course  of 
lawmaking.  The  Reichstag  had  the  right  to  originate  measures, 
but,  as  a  matter  of  practice,  originated  very  few.  Most  bills  first 
passed  the  Bundesrat  and  went  with  its  sanction  to  the  Reichstag. 
If  passed  by  the  people's  house,  they  were  returned  to  the 
Bundesrat,  and  there  once  more  adopted.  All  the  more  im- 
portant legislation,  moreover,  was  framed  by  the  imperial  officials 
and  presented  to  the  Bundesrat  by  the  Chancellor,  who  was  not 
only  president  of  the  federal  chamber  but  also  chief  of  the 
Prussian  delegation.  Prussia,  therefore,  in  reality  presided  over 
the  process  of  legislation.  Hers  was  the  chief  initiative  ;  and  the 
federal  chamber,  in  which  she  controlled  twenty-one  votes,  was 
the  usual  source  of  every  great  measure.  The  Reichstag  had,  of 
course,  the  right  of  amendment,  and  sometimes  exercised  it ;  but 
nothing  that  it  suggested  could  become  law  without  the  assent  of 
the  guiding  and  overseeing  Bundesrat.  The  consent  of  the 
Bundesrat,  as  well  as  of  the  Reichstag,  was  necessary  to  every 
treaty  which  affected  any  matter  that  fell  within  the  legislative 
powers  of  the  Empire. 

The  measures  sent  down  from  the  Bundesrat  to  the  Reichstag 
were  generally  advocated  there,  if  not  by  the  chancellor  himself, 
by  members  of  the  federal  chamber  specially  delegated  for  that 
purpose;  and  the  Reichstag  was  usually  kept  advised  of  the 
amendments  which  the  Bundesrat  would  accept.  All  members 
of  the  Bundesrat  had,  however,  the  right  to  be  present  in  the 
Reichstag,  and  to  express  the  views  of  their  governments  upon 
its  floor  concerning  pending  legislation,  even  when  the  views 
were  not  those  which  had  been  accepted  by  the  majority  in  the 
Bundesrat. 


452  THE   GOVERNMENTS    OF   GERMANY. 

The  administrative  function  of  the  federal  chamber  may  be 
summed  up  in  the  word  oversight.  It  considered  all  defects  or 
needs  which  discovered  themselves  in  the  administrative  arrange- 
ments of  the  Empire  in  the  course  of  the  execution  of  the  laws, 
and  might,  in  all  cases  where  that  duty  had  not  been  otherwise  be- 
stowed, formulate  the  necessary  regulation  to  cure  such  defects 
and  meet  such  needs.  It  had,  moreover,  a  voice  in  the  choice  of 
some  of  the  most  important  officers  of  the  imperial  service.  It 
nominated  or  elected  the  members  of  the  Court  of  Accounts,  of 
the  Supreme  Court  of  the  Empire  (Reichsgericht),  and  of  the 
'  Chamber  of  Discipline,'  as  well  as  the  officials  who  administered 
the  imperial  pension  funds,  and  those  who  constituted  the  direc- 
tory of  the  Imperial  Bank.  It  confirmed  the  nomination,  also, 
either  directly  or  through  one  of  its  committees,  of  consuls  and 
of  the  officers  who  exercise  the  imperial  control  over  the  duties 
and  taxes  laid  by  the  states  under  laws  of  the  Empire.  The  con- 
sent of  the  Bundesrat  was  also  necessary  to  a  declaration  of  war l 
(except  in  case  of  invasion,  when  the  Emperor  could  act  alone), 
to  a  dissolution  of  the  Reichstag  during  a  legislative  period,  and 
to  coercive  action  against  a  state  of  the  Empire. 

The  judicial  functions  of  the  Bundesrat  sprang  in  part  out  of 
its  character  as  the  chief  administrative  council  of  the  Empire. 
When  acting  as  such  a  council,  many  of  its  conclusions  partook 
of  the  nature  of  decisions  of  a  supreme  administrative  court  of 
appeal.  But  its  jurisdiction  as  a  court  was  much  wider  than  ques- 
tions of  administration.  It  could  declare  a  state  of  the  Empire 
delinquent,  and  order  execution  to  issue  against  it.  It  was  the 
court  of  highest  instance  in  every  case  of  the  denial  of  justice  to 
an  individual  in  a  state  court  arising  out  of  a  defect  or  deficiency 
in  the  law  of  the  state  ;  it  being  within  its  competence  in  such  a 
case  to  compel  the  state  to  cure  the  deficiency  and  afford  the 
suitor  the  proper  remedy.  It  was  the  court  of  appeal  in  all  cases 
of  dispute  between  the  imperial  government  and  a  state,  and  in 
all  cases  arising  between  two  or  more  states  of  the  Empire  which 
involved  not  mere  private  law  questions  (such  cases  go  to  the  or- 
dinary civil  courts),  but  points  of  public  law. 

1  That  this  power  was  illusory  is  shown  by  the  declaration  of  war  in  1914 
when  the  Bundesrat  was  not  in  session. 


THE   GOVERNMENTS    OF   GERMANY.  453 

In  case  it  could  not  agree  upon  a  conclusion  in  such  disputes,  the 
whole  legislative  power  was  brought  into  play  and  a  law  was  passed 
covering  the  matter  in  controversy.  If  in  any  case  it  considered  it- 
self unfitted  by  its  organization,  or  for  any  other  reason,  to  act 
as  a  court  in  controversies  brought  before  it,  it  might  delegate  its 
judicial  powers  to  a  court  or  to  experts.  This  it  did  in  1877  with 
reference  to  the  dispute  between  Prussia  and  Saxony  concerning 
the  Berlin-Dresden  railway. l 

Organization  of  the  Bundesrat.  —  The  Imperial  Chan- 
cellor was  chairman  of  the  Bundesrat.  He  was  appointed  by  the 
king  of  Prussia,  and  he  must  also  be  one  of  Prussia's  seventeen 
representatives,  —  for  it  is  the  better  opinion  among  German  con- 
stitutional lawyers  that  the  Chancellor's  membership  in  the  federa1 
chamber  was  necessary  to  his  presidency  of  the  body.  In  case  of 
a  tie  vote,  the  Chancellor's  vote  was  decisive:  that  is  to  say,  the 
side  on  which  Prussia's  votes  were  cast  prevailed,  for  her  vote  must 
be  undivided :  —  the  Chancellor's  vote  was  not  his  own,  but  was 
one-seventeenth  part  of  Prussia's  whole  vote. 

Inasmuch  as  it  was  not  merely  the  legislative  but  also  the  ad- 
ministrative organ  of  the  Empire,  the  Bundesrat  might  be  convened 
without  the  Reichstag.  It  must  be  called  together  if  one-third  of 
its  members  demanded  a  session.  Its  business,  moreover,  was 
continuous  from  session  to  session,  being  taken  up  at  each  session 
where  it  was  left  off  at  the  last :  an  arrangement  by  which  it  gained 
both  efficiency  and  expedition  in  action.  Its  sessions  were  secret : 
for  it  preserved  the  reserve  of  a  guiding  cabinet.  Its  compro- 
mises and  quarrels  did  not  go  abroad. 

Imperial  law  made  no  provision  with  regard  to  a  quorum  in  the 
Bundesrat.  It  is  believed  by  German  jurists,  however,  that  its 
business  could  go  forward,  after  proper  notice,  if  only  the  Chan- 
cellor, its  president,  were  present.  No  state  could  cast  its  vote 
upon  any  question  in  which  it  was  not  interested. 

Committees.  —  The  Bundesrat  followed  the  practice  of  other 
deliberative  bodies  in  referring  various  matters  to  special  com- 
mittees of  its  members.  It  had,  too,  like  other  bodies,rcertain  stand- 
ing committees.  These  were  four :  one  on  Alsace-Lorraine,  one  on 
the  Constitution,  one  on  the  Order  of  Business,  and  one  on  Kail- 
road  Freight  Rates 

JLaband,  p.  43,  n. 


454  THE  GOVERNMENTS   OF   GERMANY. 

Much  more  important  than  these,  however,  were  eight  delega- 
tions of  its  members  which,  though  called  committees,  may  be  more 
properly  described  as  Commissions,  for,  like  the  executive  commit- 
tee of  our  own  Congress  under  the  old  Confederation  (p.  288),  they 
continued  to  sit  during  the  recesses  of  the  chamber  which  they  in 
a  sense  represented.  Of  these  Commissions  two  were  appointed  by 
the  Emperor,  namely  a  Commission  "  for  the  Land  Forces  and 
Fortifications  "  and  a  Commission  "  for  Naval  Affairs  "  :  five  were 
chosen  yearly  by  the  Bundesrat,  namely,  those  "on  Tariffs  and 
Taxation,"  "for  Trade  and  Commerce,"  "for  Railways,  Posts, 
and  Telegraphs,"  "  on  Justice,"  and  "  on  Accounts  "  (Eechnungs- 
weseri)-,  the  eighth  and  most  important,  the  "Commission  on 
Foreign  Affairs,"  consisted  of  the  representatives  of  Bavaria, 
Saxony,  and  Wiirttemberg,  and  of  two  other  members  chosen  by 
the  Bundesrat.  At  least  five  states  must  be  represented  on  each 
of  these  Commissions,  and  Prussia  must  always  be  one  of  the  five, 
except  in  the  case  of  the  Commission  on  Foreign  Affairs.  On  this 
last  Prussia  needed  no  representation ;  she  had  committed  to  her, 
through  her  king  who  is  also  Emperor,  the  whole  conduct  of  the 
foreign  affairs  of  the  Empire;  the  Commission  was  appointed 
simply  to  watch  the  course  of  international  relations,  and  to  inform 
the  several  states  of  the  posture  of  foreign  affairs  from  time  to 
time.  "  It  has  to  prepare  no  conclusion  for  the  Bundesrat  and  to 
make  no  reports  to  it :  it  serves  to  receive  communications  concern- 
ing the  foreign  affairs  of  the  Empire  and  to  exchange  opinions  with 
the  imperial  administration  concerning  "  those  affairs.1  Its  action 
was  thus  independent  of  its  connection  with  the  Bundesrat;  and 
this  is  the  chief  point  of  contrast  between  it  and  the  other  Com- 
missions. Their  duties  were  principally  to  the  Bundesrat :  they 
for  the  most  part  only  made  reports  to  it. 

Besides  their  right  to  representation  on  the  Commission  on 
Foreign  Affairs,  of  which  Bavaria  had  the  presidency,  Wurttem- 
berg,  Bavaria,  and  Saxony  had  also  the  right  to  appointments  on 
the  Commissions  for  Land  Forces  and  Fortifications  and  for  Naval 
Affairs  which  it  was  the  privilege  of  the  Emperor  to  name. 
Prussia  was  entitled  to  the  presidency  of  all  the  Commissions  ex- 
cept that  on  Foreign  Affairs.  Each  state  represented  had  one 

iLaband,  p.  46. 


THE   GOVERNMENTS   OF   GERMANY.  455 

vote  in  the  action  of  a  Commission,  and  a  simple  majority 
controlled. 

The  Reichstag  :  its  Character  and  Competence.  —  It  would 
lead  to  very  serious  misconceptions  to  regard  the  Bundesrat  and 
the  Reichstag  as  simply  the  two  houses  of  the  imperial  legislature, 
unlike  each  other  only  in  some  such  way  as  our  Senate  and  House 
of  Representatives  are  unlike,  only,  i.  e.,  because  the  upper  house 
was  differently  constituted  and  was  entrusted  with  a  certain  share 
in  functions  not  legislative.  Properly  conceived,  the  Bundesrat 
and  Reichstag  stood  upon  a  very  different  footing  with  reference 
to  each  other.  The  Bundesrat  was  the  sovereign  organ  of  the 
Empire,  the  authoritative  representative  of  the  "  body  of  German 
sovereigns  and  the  senates  of  the  free  cities."  Though  it  in- 
itiated most  of  the  legislation  of  the  Empire,  legislation  was  no 
more  peculiarly  its  business  than  was  the  superintendence  of  ad- 
ministration or  the  exercise  of  judicial  functions.  It,  as  part  of 
the  administration,  governed ;  the  Reichstag,  as  representing  the 
German  people,  was  supposed  to  control.  The  control  of  the 
Reichstag  was  exercised,  not  only  through  its  participation  in 
legislation,  but  also  through  the  giving  or  withholding  of  its  sanc- 
tion to  certain  ordinances  to  whose  validity  the  constitution  made 
its  concurrence  necessary ;  through  its  power  of  refusing  to  pass 
the  necessary  laws  for  the  execution  of  treaties  of  which  it  does 
not  approve ;  through  its  right  to  inquire  into  the  conduct  of 
affairs  ;  and  through  its  right  of  remonstrance.  Its  powers  were 
not  enumerated  ;  they  were,  exercised  in  one  .form  or  another, 
in  theory  as  wide  as  the  activities  of  the  Empire.  The  legislative 
competence  of  the  Empire  was,  after  1873,  legally  unlimited  as  to 
private  law:  it  covered  the  whole  field  of  civil  and  criminal 
enactment. 

Composition  of  the  Reichstag. — The  Reichstag  represented, 
not  the  states,  or  the  people  of  the  several  states  regarded  sepa- 
rately, but  the  whole  German  people.  Representation  was  dis- 
tributed on  the  basis  of  about  one  representative  to  every  one 
hundred  and  thirty-one  thousand  inhabitants.  Representatives 
were,  however,  elected  by  districts,  one  for  each  district,  and  no 
district  could  cross  a  state  line  and  include  territory  lying  in  more 
than  one  state.  If,  therefore,  any  state  of  the  Empire  had  less 


456  THE   GOVERNMENTS   OF   GERMANY. 

than  one  hundred  and  thirty-one  thousand  inhabitants,  it  must, 
nevertheless,  be  constituted  a  district  and  send  a  representative  to 
the  Reichstag. 

The  Reichstag  consisted  (1917)  of  three  hundred  and  ninety- 
seven  members  ;  and  of  this  number  Prussia  returned  two  hundred 
and  thirty-five,  about  three-fifths  of  the  whole  number.  The  elec- 
toral districts  were  fixed  so  long  ago  that  Berlin,  though  it  had 
grown  to  possess  more  than  two  million  inhabitants,  had  only  six 
members  in  the  Reichstag. 

The  members  of  the  Reichstag  were  elected  for  a  term  of  five 
years  by  universal  suffrage  and  secret  ballot.  The  voting  age  in 
Germany  was  twenty-five  years ;  and  that  was  also  the  earliest 
age  of  eligibility  to  the  Reichstag. 

The  election  districts  were  determined  in  the  northern  states  according 
to  laws  passed  under  the  North  German  Confederation  ;  in  Bavaria,  by  the 
Bavarian  legislature  ;  in  the  other  southern  states,  by  the  Bundesrat.  The 
subdivisions  of  the  districts,  the  voting  precincts,  were  determined  by  the 
administrations  of  the  states. 

An  absolute  majority  was  required  for  election,  as  in  France  (p.  152). 
In  case  no  candidate  received  such  a  majority,  the  commissioner  of  election 
—  an  officer  appointed  by  the  state  administration  for  each  district  — 
ordered  a  new  election  to  take  place  within  fourteen  days  after  the  official 
publication  of  the  result  of  the  first,  the  voting  to  be  for  the  two  candi- 
dates who  received  the  highest  number  of  votes.  Should  this  second  elec- 
tion result  in  a  tie,  the  lot  decided. 

Election  to  the  Reichstag  took  place,  not  on  days  set  by  statute, 
but  on  days  appointed  by  executive  decree.  For  the  Reichstag 
could  be  dissolved  by  the  Emperor,  with  the  consent  of  the  Bund- 
esrat (by  a  vote  in  which  Prussia  concurred)  before  the  completion 
of  its  regular  term  of  five  years. 

In  case  of  a  dissolution,  it  was  required  that  a  new  election 
must  be  ordered  within  sixty  days,  and  the  Reichstag  must  re- 
assemble within  ninety  days.  The  Emperor  could  also  adjourn 
the  Reichstag  without  its  own  consent  (or,  in  English  phrase,  pro- 
rogue it)  once  during  any  session,  for  not  more  than  thirty  days. 
Sessions  of  the  Reichstag.  —  The  Reichstag  met  at  the  call 
of  the  Emperor,  who  must  call  it  together  at  least  once  each  year ; 
and  who  might  convene  it  oftener.  He  must  summon  at  the  same 
time  the  Bundesrat.  The  sessions  of  the  Reichstag  were  public  j  it 


THE   GOVERNMENTS    OF    GERMANY.  457 

was  not  within  its  choice  to  make  them  private.  A  private  session 
was  regarded  as,  legally,  only  a  private  conference  of  the  members 
of  the  Reichstag,  and  could  have  no  public  authority  whatever. 

Members  of  the  Reichstag  who  accepted  a  salaried  office  under  the 
Empire  or  one  of  the  states,  or  an  imperial  or  state  office  of  higher  rank 
or  power  than  any  they  may  have  held  when  elected,  were  compelled  to 
resign  and  offer  themselves  for  reelection. 

Organization  of  the  Reichstag.  —  The  Reichstag  elected  its 
own  president,  vice-presidents  (2),  and  secretaries.  For  the 
facilitation  of  its  business,  it  divided  itself  by  lot,  for  the  session, 
into  seven  '  Sections '  (Abteilungeri),  each  Section  being  made  to 
contain,  as  nearly  as  might  be,  the  same  number  of  members  as 
each  of  the  others.  These  Sections  divided  among  them  the  work 
of  verifying  the  election  of  members  and  the  choice  of  special 
committees.  The  Reichstag  had  no  standing  committees ;  but 
from  time  to  time,  as  convenience  suggested,  temporary  commit- 
tees were  named,  whose  duty  it  was  to  prepare  information  for  the 
body,  which  they  presented  in  reports  of  a  general  nature.  These 
committees  it  was  which  the  Sections  selected.  Each  Section  con- 
tributed its  quota  of  members  to  each  committee.  The  party 
leaders,  however,  always  determined  beforehand  the  division  of 
places  on  the  Committees  and  the  Sections  merely  did  their  will 
in  the  matter.  Government  bills,  moreover,  were  not  referred  to 
the  committees.  They  played  no  such  part  in  revision  as  is  played 
by  the  committees  of  the  French  Chamber  of  Deputies.  One-half 
of  the  members  constituted  a  quorum.;  and  an  absolute  majority 
was  requisite  to  a  valid  vote. 

Election  of  Officers.  —  The  initial  constitution  of  a  newly 
elected  Reichstag  was  interesting.  It  came  to  order  under  the 
presidency  of  the  oldest  member ;  it  then  elected  its  president, 
two  vice-presidents,  and  secretaries ;  the  president  and  vice- 
presidents  for  a  term  of  only  four  weeks.  At  the  end  of  these 
four  weeks  a  president  and  vice-presidents  were  elected  for  the 
rest  of  the  session.  There  was  no  election  of  officers  for  the 
whole  legislative  term,  as  in  England  and  the  United  States :  at 
the  opening  of  each  annual  session  a  new  election  took  place.  It 
was  only  at  the  first,  however,  that  there  was  a,  so  to  say,  ex- 
perimental election  for  a  trial  term  of  four  weeks. 


458  THE    GOVERNMENTS    OF    GERMANY. 

Powers  of  the  Reichstag :  the  Budget.  —  The  Bundesrat, 
as  I  have  said,  governed  ;  the  Reichstag  in  a  measure  controlled. 
But  only  in  a  measure.  Its  assent  was  necessary  to  the  validity 
of  all  legislation.  Though  the  Bundesrat  originated,  it  could  not 
rule  in  the  field  of  law  without  the  cooperation  of  the  popular 
chamber.  Like  other  popular  assemblies,  too,  the  Reichstag 
voted  the  taxes  and  subjected  the  government  to  criticism 
when  it  asked  for  money.  But  the  annual  budget  came  to  it  like 
other  subjects  of  legislation,  from  the  Bundesrat,  and  with  the 
sanction  of  that  great  chamber  already  behind  it ;  many  of  the 
principal  revenue  laws  were  not  annual  but  permanent ;  the  army, 
for  whose  maintenance  the  larger  votes  were  asked,  was  organized 
for  periods  of  several  years  together  and  must  be  paid  ;  and  there 
was  really  very  little  latitude  of  choice  with  regard  to  any  but 
new  or  subordinate  expenditures.  No  minister  was  responsible  to 
the  Reichstag  for  what  he  did  or  proposed.  The  Emperor  might 
dissolve  the  Reichstag  at  any  time,  if  the  Bundesrat  consented, 
and  he  frequently  exercised  the  power  with  the  result  of  obtain- 
ing in  the  new  elections  the  majority  he  desired.  The  Reichstag 
might  influence  affairs,  might  win  slow  victories  by  persistent  and 
well-directed  criticism,  might  force  modifications  of  policy ;  but  it 
was  constantly  made  to  realize  the  fact  that  it  could  not  govern, 
and  that  its  chief  function  was  not  origination  but  control.1 

Classes  and  Parties. —  The  majority  of  its  members,  more- 
over, were  Prussians,  and  Prussia  was  above  all  things  else  a  mili- 
tary state,  trained  to  the  compact  order  and  instinctive  obedience 
of  a  strong  monarchy.  Classes,  too,  were  sharply  marked  in  Prus- 
sia. An  active  and  influential  landed  aristocracy  furnished  the 
army  with  its  best  officers,  the  court  with  its  most  devoted  servants, 
the  public  assemblies  with  their  most  conservative  leaders.  The 
parties  that  desired  democratic  privilege  worked  against  ancient 
prestige,  against  the  habit  of  the  community,  against  the  organi- 
zation and  the  prejudices  of  long-established  classes.  National 
parties,  moreover,  were  broken  athwart  by  the  divergent  feelings 
and  variant  interests  of  the  different  states  of  the  unequal  Em- 
pire. Prussia  supported  the  monarchy  whose  power  galled  the 

1  On  at  least  two  occasions  unfavorable  votes  upon  the  resolution  after  inter- 
pellation had  no  effect  upon  the  government. 


THE   GOVERNMENTS   OF   GERMANY.  459 

lesser  states ;  her  statesmen  withstood  the  process  of  liberaliza- 
tion which  men  of  some  of  the  smaller  states  would  fain  have 
seen  pressed  forward.  Neither  responsible  party  government  nor 
any  kind  of  clear-cut  constitutional  rule  was  possible. 

Imperial  Administration.  —  While  the  distinction  between 
the  executive  and  legislative  functions  of  government  was  sharply 
enough  preserved  in  Germany,  no  equally  clear  discrimination  was 
made  in  practice  between  executive  and  judicial  functions.  The 
judiciary  was  a  branch  of  the  administration.  The  caption  '  Im- 
perial Administration'  covered,  therefore,  all  activities  of  the 
government  of  the  Empire  which  were  not  legislative. 

Although  it  was  a  fundamental  principle  of  the  imperial  con- 
stitution that  '  the  Empire  has  sovereign  legislative  power,  the 
states  only  autonomy,'  the  Empire  occupied  only  a  part  of  the 
great  field  thus  opened  to  it,  and  confined  itself  as  a  rule  to  mere 
oversight,  leaving  to  the  states  even  the  execution  of  imperial 
laws.  The  judges  of  all  but  the  supreme  imperial  court,  for 
instance,  the  tariff  officials  and  gangers,  the  coast  officers,  and  the 
district  military  authorities,  were  state  officers. 

The  Imperial  Chancellor.  —  The  Empire  had,  neverthe- 
less, its  own  distinct  administrative  organs,  through  which  it 
took,  whether  through  oversight  simply  or  as  a  direct  execu- 
tive, a  most  important  and  quite  controlling  part  in  affairs ;  and 
the  head  and  centre  of  its  administration  was  the  Imperial  Chan- 
cellor, an  officer  who  has  no  counterpart  in  any  other  constitu- 
tional government. 

(1)  Looked  at  from  one  point  of  view,  the  Chancellor  may  be  said 
to  have  been  the  Emperor's  responsible  self.  If  one  could  clearly 
grasp  the  idea  of  a  responsible  constitutional  monarch  standing  be- 
side an  irresponsible  constitutional  monarch  from  whom  his  au- 
thority was  derived,  he  would  have  conceived  the  real,  though  not 
the  theoretical,  character  of  the  Imperial  Chancellor  of  Germany. 
He  was  the  Emperor's  responsible  proxy.  Appointed  by  the 
Emperor  and  removable  at  his  pleasure,  he  was  still,  while  he  re- 
tained his  office,  virtually  supreme  head  of  the  state,  standing  be- 
tween the  Emperor  and  the  Reichstag,  as  the  butt  of  all  criticism 
and  the  object  of  all  punishment.  He  was  not  a  responsible 
minister  in  the  English  or  French  sense  (pages  160  and  196) ;  there 


460  THE   GOVERNMENTS    OF    GERMANY. 

was,  strictly  speaking,  no  '  parliamentary  responsibility '  in  Ger- 
many. In  many  respects,  it  is  true,  the  Chancellor  occupied 
with  regard  to  the  Reichstag  much  the  same  position  that  a 
French  or  English  ministry  holds  towards  the  representatives  of 
the  people ;  he  must  give  an  account  of  the  administration  to 
them,  when  a  debate  was  forced  upon  him.  But  an  adverse  vote 
did  not  unseat  him.  His  'responsibility'  did  not  consist  in  a 
liability  to  be  forced  to  resign,  but  consisted  simply  in  amena- 
bility to  the  laws.  He  did  not  represent  the  majority  in  the 
Reichstag,  but  he  must  obey  the  law. 

This  'responsibility'  of  the  Chancellor's,  so  far  as  it  went, 
shielded,  not  the  Emperor  only,  but  also  all  other  ministers. 
"  The  constitution  of  the  Empire  knows  only  a  single  administra- 
tive chief,  the  Imperial  Chancellor."  l  So  all-inclusive  was  the 
representative  character  of  the  chancellorship  that  all  powers  not 
specifically  delegated  to  others  rested  with  the  Chancellor.  Thus, 
except  when  a  special  envoy  was  appointed  for  the  purpose,  he 
conducted  all  negotiations  with  foreign  powers.  He  was  also 
charged  with  facilitating  the  necessary  intercourse  between  the 
Bundesrat  and  the  Reichstag. 

The  Chancellor's  relation  to  the  Reichstag  was  typified  in  his 
duty  of  submitting  to  it  the  annual  budget  of  the  Empire. 

(2)  Still    further   examined,   the   chancellorship  is   found   to 
have  been  the  centre,  not  only,  but  also  the  source  of  all  depart- 
ments of  the  administration.     Theoretically  at  least  the  chancel- 
lorship was  the  administration :   the  various  departments  were 
offshoots  from  it,  differentiations  within  its  all-embracing  sphere. 
In  the  official  classification  adopted  in  German  commentaries  on 
the  public  law  of  the  Empire,  the  Chancellor  constituted  a  class 
by  himself.2    There  were  (1)  The  Imperial  Chancellor,  (2)  Ad- 
ministrative  officials,  (3)  Independent  (i.e.,  separate)   financial 
officials,  and  (4)  Judicial  officials.     The  Chancellor  dominated  the 
entire  imperial  service, 

(3)  A  third  aspect  of  the  Chancellor's  abounding  authority  was 
his  superintendency  of   the  administration  of   the  laws  of   the 
Empire   by  the   states.     With   regard   to   the   large   number  of 
imperial  laws  which  were  given  into  the  hands  of  the  several 

i  Laband,  p.  57.  2  Laband,  p.  56. 


THE  GOVERNMENTS  OF  GERMANY.          461 

states  to  be  administered,  the  Empire  could  not  only  command  what 
was  to  be  done,  but  might  also  prescribe  the  way  in  which  it  should 
be  done :  and  it  was  the  duty  of  the  Chancellor  to  superintend 
the  states  in  their  performance  of  such  behests.  In  doing  this  he 
did  not,  however,  deal  directly  with  the  administrative  officials  of 
the  states,  but  with  the  state  governments  to  whom  those  officials 
were  responsible.  In  case  of  conflict  between  the  Chancellor  and 
the  government  of  a  state,  the  Bundesrat  decided. 

The  expenses  of  this  administration  of  federal  laws  by  the  states  fel^ 
upon  the  treasuries  of  the  states  themselves,  not  upon  the  treasury  of  the 
Empire.  Such  outlays  on  the  part  of  the  states  constituted  a  part  of 
their  contribution  to  the  support  of  the  imperial  government.  The 
states  were  required  to  make  regular  reports  to  the  imperial  government 
concerning  their  conduct  of  imperial  administration. 

(4)  When  acting  in  the  capacity  of  chairman  of  the  Bundesrat, 
the  Chancellor  was  simply  a  Prussian,  not  an  imperial,  official. 
He  represented  there,  not  the  Emperor,  for  the  Emperor  as  Em- 
peror had  no  place  in  the  Bundesrat,  but  the  king  of  Prussia. 
During  most  of  the  time  since  the  institution  of  the  Empire  the 
Chancellor  was  also  chief  minister  of  Prussia  as  president  of  the 
Council.  Theories  aside,  the  Prussian  government  guided  im- 
perial affairs  through  the  Chancellor. 

The  Vice-Chancellorship.  —  The  laws  of  the  Empire  made 
a  double  provision  for  the  appointment  of  substitutes  for  the 
Chancellor.  As  already  said,  in  connection  with  his  presidency 
of  the  Bundesrat  he  could  himself  appoint  a  substitute,  for  whose 
acts  he  was,  however,  responsible.  In  addition  to  this  a  law  of 
March  17,  1878,  empowered  the  Emperor  to  appoint  a  responsible 
Vice-Chancellor.  This  appointment  was  made,  upon  the  motion 
of  the  Chancellor  himself,  for  the  administration  of  all  or  any 
part  of  his  duties,  when  he  was  himself  hindered,  even  by  an 
overweight  of  business,  from  acting;  the  Chancellor  himself 
judging  of  the  necessity  for  the  appointment.  The  Chancellor 
might,  at  any  time,  too,  resume  any  duties  that  might  have  been 
entrusted  to  the  Vice-Chancellor,  and  himself  act  as  usual.  He 
was  thus,  in  effect,  ultimately  responsible  in  every  case,  —  even 
for  the  non-exercise  of  his  office.  The  vice-chancellorship  was 
only  a  convenience. 


462  THE   GOVERNMENTS   OF   GERMANY. 

Foreign  Affairs.  —  The  full  jurisdiction  over  the  foreign 
affairs  of  the  Empire  conferred  upon  the  imperial  government  by 
the  constitution  of  the  Empire  did  not  exclude  the  several  states 
from  having  their  own  independent  dealings  with  foreign  courts  : 
it  only  confined  them  in  such  dealings  to  matters  which  concerned 
them  without  immediately  affecting  imperial  interests.  The 
subject  of  extradition,  for  instance,  of  the  furtherance  of  science 
and  art,  of  the  personal  relations  and  private  affairs  of  dynasties, 
and  all  matters  which  affect  the  interests  of  private  citizens  indi- 
vidually, were  left  to  be  arranged,  if  the  states  desired,  inde- 
pendently of  the  imperial  Foreign  Office.  The  states,  therefore, 
had  as  full  a  right  to  send  ambassadors  for  their  own  constitutional 
purposes  as  the  Empire  had  to  send  ambassadors  for  its  greater 
objects  affecting  the  peace  and  good  government  of  Europe.  It 
might  thus  often  happen  that  the  Empire  and  several  of  the  states 
of  the  Empire  were  at  the  same  time  separately  represented  at 
one  and  the  same  court.  In  the  absence  of  special  representatives 
from  the  states,  their  separate  interests  were  usually  cared  for  by 
the  representative  of  the  Empire.  The  department  of  the  impe- 
rial administration  which  had  charge  of  the  international  rela- 
tions of  the  Empire  was  known  as  the  Foreign  Office  simply  (das 
Auswdrtige  Ami). 

Internal  Affairs. — The  general  rule  of  government  in 
Germany  was  that  administration  was  left  for  the  most  part  to 
the  states,  only  a  general  superintendence  being  exercised  by 
the  imperial  authorities.  But  the  legislative  sphere  of  the 
Empire  was  very  much  wider  than  is  the  legislative  sphere  of 
the  central  government  in  any  other  federal  state.  Imperial 
statutes  prescribed  in  very  great  variety  the  laws  which  the  states 
administered,  and  constantly  extended  farther  and  farther  their 
lines  of  prescription.  From  the  Empire  emanated  not  only  laws 
which  it  was  of  the  utmost  moment  to  have  uniform,  —  such  as 
laws  of  marriage  and  divorce,  —  but  also  laws  of  settlement,  poor 
laws,  laws  with  reference  to  insurance,  and  even  veterinary  regu- 
lations. Its  superintendence  of  the  local  state  administration  of 
imperial  laws,  moreover,  was  of  a  very  active  and  systematic  sort. 

Weights  and  Measures.  —  Imperial  methods  of  supervision  are 
well  illustrated  in  the  matter  of  weights  and  measures.     The  laws  with 


THE  GOVERNMENTS   OF   GERMANY.  463 

reference  to  the  standard  weights  and  measures  to  be  used  in  commerce 
were  passed  by  the  imperial  legislature  and  administered  by  state  officials 
acting  under  the  direction  and  in  the  pay  of  the  state  authorities ;  but 
thorough  control  of  these  state  officials  was  exercised  from  Berlin.  There 
was  at  the  capital  a  thoroughly  organized  Weights  and  Measures  Bureau 
(Normal-Eichungskojnmission) ,  which  supplied  standard  weights  and 
measures,  superintended  all  the  technical  business  connected  with  the 
department,  aud  was  in  constant  and  direct  association  with  the  state  offi- 
cials concerned,  to  whom  it  issued  from  time  to  time  specific  instructions. 

Money.  —  With  regard  to  money  the  control  of  the  Em- 
pire was,  as  might  be  expected,  more  direct.  The  states  were  for- 
bidden to  issue  paper  money,  and  imperial  legislation  alone 
determined  money-issue  and  coinage.  But  even  here  the  states 
were  the  agents  of  the  Empire  in  administration.  Coining  was 
entrusted  to  state  mints,  the  metal  to  be  coined  being  distributed 
equally  among  them.  This,  however,  was  not  really  state  coinage. 
The  state  mints  were  the  mere  agents  of  the  imperial  government : 
they  coined  only  so  much  as  they  were  commanded  to  coin ;  they 
operated  under  the  immediate  supervision  of  imperial  commis- 
sioners ;  and  the  costs  of  their  work  were  paid  out  of  the  imperial 
treasury.  They  were  state  mints  only  in  this,  that  their  officers 
and  employees  were  upon  the  rolls,  not  of  the  imperial,  but 
of  the  state  civil  service.  The  Empire  would  doubtless  have 
had  mints  of  its  own  had  these  not  already  existed  ready  to 
its  hand. 

Railways.  —  The  Empire  made  comparatively  little  use  of 
the  extensive  powers  granted  it  in  this  field  by  its  constitution. 
It  could  virtually  control ;  but  it  in  practice  only  oversaw  and 
advised.  The  Imperial  Railway  Office  (Reichs-Eisenbahnami) 
had  advisory  rather  than  authoritative  functions ;  its  principal 
supervisory  purpose  was  to  keep  the  various  roads  safe  and  ade- 
quately equipped.  Some  railways  the  Empire  itself  owned,  but 
most  of  the  lines  were  owned  by  the  several  states ;  and  the 
states  were  bound  by  the  constitution  to  administer  them,  not  in- 
dependently or  antagonistically,  but  as  parts  of  a  general  German 
system.  Here  again  the  Empire  refrained  from  passing  any  laws 
compelling  obedience  to  the  constitution  on  this  point ;  possibly 
because  the  states  assiduously  complied  of  their  own  accord. 


464  THE   GOVERNMENTS    OF    GERMANY. 

Using  the  Bundesrat  for  informal  conference  on  the  matter 
(though  the  Bundesrat  has  no  constitutional  authority  in  railway 
administration)  they  effected  satisfactory  cooperative  arrange- 
ments. 

The  railways  of  Bavaria  stood  upon  a  special  footing:  for 
Bavaria  came  into  the  federation  on  special  te/ms,  reserving  an 
independence  much  greater  than  the  other  states  retained  in  the 
management  of  her  army,  her  railways,  and  her  posts  and  tele- 
graphs. 

For  military  purposes,  the  Empire  could  command  the  services 
of  the  railways  very  absolutely.  It  was  as  aids  to  military  ad- 
ministration primarily  that  their  proper  construction  and  efficient 
equipment  were  insisted  on  through  the  Imperial  Kail  way  Office. 
Even  the  Bavarian  railroads  could  be  absolutely  controlled  when 
declared  by  formal  imperial  legislative  action  to  be  of  military 
importance  to  the  Empire.  With  reference  to  any  but  the  Bava- 
rian roads  a  simple  resolution  of  the  Bundesrat  alone  sufficed  for 
this  declaration. 

The  duty  of  the  states  to  administer  their  roads  as  parts  of  a 
single  system  was  held  to  involve  the  running  of  a  sufficient  num- 
ber of  trains  to  meet  all  the  necessities  of  passenger  and  freight 
traffic,  the  running  of  through  coaches,  the  maintenance  of  proper 
connections,  the  affording  of  full  accommodations,  etc. 

At  times  of  scarcity  or  crisis,  the  Emperor  could,  with  the  ad- 
vice of  the  Bundesrat,  prescribe  low  tariffs,  within  certain  limits, 
for  the  transportation  of  certain  kinds  of  provisions. 

Posts  and  Telegraphs.  —  Here  the  administrative  arrange- 
ments of  the  Empire  were  somewhat  complicated.  Bavaria  and 
Wiirttemberg  retained  their  own  systems  and  a  semi-independence 
in  their  administration,  just  as  Bavaria  did  with  regard  to  her 
railways  also ;  being  subject  to  only  so  much  of  imperial  regula- 
tion as  brought  their  postal  and  telegraphic  services  into  a  neces- 
sary uniformity  with  those  of  the  Empire  at  large.  In  most  of 
the  states  the  imperial  authorities  directly  administered  these 
services  ;  in  a  few  —  Saxony,  Saxe-Altenburg,  the  two  Mecklen- 
burgs,  Brunswick,  and  Baden  —  there  was  a  sort  of  partnership 
between  the  states  and  the  Empire.  The  principle  throughout 
was,  however,  that  the  Empire  controlled. 


THE   GOVERNMENTS   OF   GERMANY.  465 

Patents,  etc.  —  Besides  the  administrative  activities  with  refer- 
ence to  internal  affairs  which  have  been  mentioned,  the  Empire  issued 
patents,  granted  warrants  to  sea-captains,  naval  engineers,  steersmen,  and 
pilots ;  and  examined  sea-going  vessels  with  a  view  to  testing  their  sea- 
worthiness. 

Military  and  Naval  Affairs.  —  The  Empire  as  such  had 
a  navy,  but  no  troops.  Prussia  was  the  only  state  of  the  Empire 
that  ever  maintained  a  naval  force,  and  she  freely  resigned  to 
the  Empire,  which  she  virtually  controls,  the  exclusive  direction 
of  naval  affairs.  But  the  case  was  different,  in  form  at  least, 
with  the  army.  That  was  composed  of  contingents  raised,  equipped, 
drilled,  and,  in  all  but  the  highest  commands,  officered  by  fhe 
states.  This  at  least  was  the  constitutional  arrangement :  the 
actual  arrangement  was  different.  Only  Bavaria,  Saxony,  and 
\\  iirttemberg  really  maintained  separate  military  administra- 
tions. The  other  states  handed  over  their  military  prerogatives 
to  the  king  of  Prussia.  Bavaria's  privileges  extended  even  to 
the  appointment  of  the  commander  of  her  contingent.  The  Em- 
peror was  commander-in-chief ,  however,  appointing  all  the  higher 
field  officers  ;  and  the  imperial  rules  as  to  the  recruitment,  equip- 
ment, discipline,  and  training  of  troops  and  as  to  the  qualifications 
and  relative  grading  of  officers  were  of  the  most  minute  kind  and 
were  imperative  with  regard  to  all  states  alike. 

Finance.  —  The  expenses  of  the  Empire  were  met  partly 
from  imperial  revenues,  and  partly  from  contributions  by  the 
states.  The  Empire  levied  no  direct  taxes ;  its  revenues  came 
principally  from  customs  duties  and  excises,  certain  stamp  taxes, 
the  profits  of  the  postal  and  telegraph  system,  of  imperial  rail- 
ways, of  the  imperial  bank,  and  like  sources.  So  far  as  these  did 
not  suffice,  the  states  assisted,  being  assessed  according  to  popu- 
lation. And  here,  again,  the  states  undertook  mueh  of  the  actual 
work  of  administration :  the  customs  officials,  for  example,  being 
state  officers  acting  under  imperial  supervision.  The  financial 
bureaux,  like  all  other  branches  of  the  imperial  government,  were 
immediately  subordinated  to  the  Imperial  Chancellor. 

Justice.  —  In  the  administration  of  justice,  as  in  so  many 
other  undertakings  of  government,  the  Empire  superintended, 
merely,  and  systematized.  The  state  courts  were  also  courts  of 


466  THE   GOVERNMENTS   OF   GERMANY. 

the  Empire :  imperial  law  prescribed  for  them  a  uniform  organi- 
zation and  uniform  modes  of  procedure :  and  at  the  head  of  the 
system  stood  the  Imperial  Court  (Reichsgericht)  at  Leipzig,  cre- 
ated in  1877  as  the  supreme  court  of  appeal.  The  state  govern- 
ments appointed  the  judges  of  the  state  courts  and  determined 
the  judicial  districts ;  but  imperial  laws  fixed  the  qualifications 
to  be  required  of  the  judges,  as  well  as  the  organization  that  the 
courts  should  have.  The  decisions  of  the  court  at  Leipzig  gave 
uniformity  to  the  system  of  law. 

Citizenship. — Every  citizen  of  a  state  of  the  Empire 
was  a  citizen  of  the  Empire  also  and  enjoyed  the  rights  and  im- 
munities of  a  citizen  in  every  part  of  the  Empire  ;  but  citizenship, 
though  rooted  in  the  states  by  way  of  locus,  was  conferred  only 
upon  terms  fixed  by  federal  law.  The  Empire  determined  in 
nearly  all  respects  this  fundamental  question  of  civil  status;  and 
every  citizen  was  thereby  made  the  more  directly  and  immediately 
a  citizen  of  the  Empire.  It  remained,  nevertheless,  the  theory 
of  the  relationship  that  citizenship  was  primarily  state  citizen- 
ship and  that  citizenship  of  the  Empire  flowed  out  of  citizenship 
of  the  state.  A  law  of  the  Empire  of  1913  provided  that  a  Ger- 
man, becoming  naturalized  in  another  country,  might  neverthe- 
less retain  his  German  citizenship.  The  oath  of  allegiance  to  his 
adopted  country  was  not  to  hinder  him  from  being  still  a  loyal 
subject  of  the  Eatherland. 

THE  GOVERNMENT  OF  PRUSSIA. 

The  organization  of  government  in  Prussia  had,  for  the  student 
of  German  political  institutions,  a  double  interest  and  importance. 
In  the  first  place,  Prussia's  king  was  Germany's  Emperor  ;  Prus- 
sia was  the  presiding  and  controlling  state  of  the  Empire ;  and 
many  of  her  executive  bureaux  were  used  as  administrative  agen- 
cies of  the  Empire.  Her  government  was  in  a  very  real  sense 
an  organ  and  representative  of  the  imperial  government.  In  the 
second  place,  Prussia's  administrative  system  served  as  a  type 
of  the  highest  development  of  local  government  in  Germany. 

Stages  of  Administrative  Development.  —  Until  the  time 
when  she  emerged  from  the  long  period  of  her  development  as 
the  Mark  Brandenburg  and  took  her  place  among  the  great  mili- 


THE   GOVERNMENTS   OF   GERMANY.  467 

tary  states  of  Europe,  Prussia's  administrative  organization  was 
of  a  very  crude  sort,  not  much  advanced  beyond  the  mediaeval 
pattern.  Later,  under  the  Great  Elector  and  his  immediate  suc- 
cessors, though  well  out  of  her  early  habits,  she  was  still  little 
more  than  a  mere  military  state,  and  her  administration,  though 
more  highly  developed,  had  almost  no  thought  for  anything  but 
the  army.  Only  since  the  close  of  the  Napoleonic  wars  has  her 
system  of  government  become  a  type  of  centralized  civil  order 

Process  of  Centralization.  —  The  Great  Elector  reduced 
the  feudal  Estates  of  the  Mark  to  complete  subjection  to  his 
will.  He  it  was,  also,  who  began  the  policy  by  which  local 
affairs  as  well  were  to  be  centralized.  In  the  towns  the  pro- 
cess was  simple  enough.  In  them  there  was  little  effective  ob- 
struction :  the  channels  were  already  open.  There  the  military 
authorities,  directly  representative  of  the  Elector,  had  all  along 
dictated  in  police  and  kindred  matters ;  direct  ordinances  of  the 
Elector,  moreover,  regulated  taxation  and  the  finances,  and  even 
modified  municipal  privileges  at  pleasure.  It  did  not  take  long, 
such  being  the  system  already  established,  to  make  burgomasters 
creatures  of  the  royal  will,  or  to  put  effective  restrictions  upon 
municipal  functions. 

In  the  provinces,  however,  it  was  quite  another  matter 
to  crush  out  local  privilege.  The  Prussia  of  the  Great  Elector 
and  his  successors  was  no  longer  the  Mark  Brandenburg,  but  the 
extended  Prussia  of  conquest.  There  were  many  Estates  to  deal 
with  in  the  several  principalities  of  the  kingdom;  and  these 
Estates,  exercising  long-established  prerogatives,  very  stubbornly 
contested  every  step  with  the  central  power.  They  were  the 
channels  through  which  the  sovereign's  will  had  at  first  to 
operate  upon  provincial  government,  and  they  were  by  no  means 
open  channels.  They  insisted,  for  a  long  time  with  considerable 
success,  that  the  chief  officers  of  the  provinces  should  be  nomi- 
nated by  themselves ;  and  they  nominated  natives,  men  of  their 
own  number.  Only  by  slow  and  insidious  processes  did  the 
Elector,  or  his  successors  the  kings  of  Prussia,  make  out  of  these 
representative  provincial  officials  subservient  royal  servants. 

First  Results  of  Centralization.  —  The  system  pursued  in 
the  process  of  centralization,  so  far  as  there  was  any  system, 


468  THE 'GOVERNMENTS    OF    GERMANY. 

was  a  system  by  which  central  control  was  grafted  upon  the  old 
growths  of  local  government  derived  from  the  Middle  Ages.  The 
result  was  of  course  full  of  complexities  and  compromises.  In 
the  vast  royal  domains  bailiffs  administered  justice  and  police,  as 
did  Schulzen  in  the  manorial  villages.  In  the  larger  rural  areas 
a  Landrath,  or  sheriff,  "  nominated  by  the  county  nobility,  usu- 
ally from  among  their  own  number,  and  appointed  by  the  king," 
saw  to  the  preservation  of  order,  to  the  raising  of  the  levies,  to 
tax  collection,  and  to  purveyance.  In  the  towns  there  was  a 
double  administration.  Magistrates  of  the  towns'  own  choosing 
retained  certain  narrow  local  powers,  constantly  subject  to  be 
interfered  with  by  the  central  authority;  but  royal  tax-commis- 
sioners, charged  with  excise  and  police,  were  the  real  rulers. 
Above  this  local  organization,  as  an  organ  of  superintendence, 
there  was  in  each  province  a  'Chamber  for  War  and  Domains/ 
which  supervised  alike  the  Landrath  and  the  city  tax-commis- 
sioners. 

A  War  and  Domains  Chamber  consisted  of  a  president,  a  "  director 
or  vice-president,  and  a  number  of  councillors  proportioned  to  the  size, 
populousness,  or  wealth  of  the  province."  The  president  of  a  chamber 
was  "  expected  to  make  periodical  tours  of  inspection  throughout  the 
province,  as  the  Landraths  did  throughout  their  counties."  In  the 
despatch  of  business  by  a  Chamber,  the  councillors  were  assigned  special 
districts,  special  kinds  of  revenue,  or  particular  public  improvements  for 
their  superintendence  or  administration,  the  whole  board  supervising, 
auditing,  etc.1 

Justice  and  Finance.  —  Much  progress  towards  centraliza- 
tion was  also  made  by  the  organization  of  justice  and  finance. 
"  The  administration  of  justice  was  in  the  hands  of  boards,  the 
Regierungen,  or  governments,  on  the  one  hand  [the  whole  organi- 
zation of  administration  in  Prussia  being  characteristically  col- 
legiate], and  the  courts  on  the  other." 

In  finance  also  there  was  promise  of  systematization. 
During  the  period  preceding  the  Napoleonic  wars,  when  Prussia 
figured  as  a  purely  military  state,  the  chief  concern  of  the  central 
government  was  the  maintenance  and  development  of  the  army. 
The  chief  source  of  revenue  was  the  royal  domains :  the  chief 

1Tuttle,  History  of  Prussia,  Vol.  III.,  pp.  107-109. 


THE   GOVERNMENTS    OF    GERMANY.  469 

need  for  revenue  arose  out  of  the  undertakings  of  war.1  There 
were,  therefore,  at  the  seat  of  government  two  specially  promi- 
nent departments  of  administration,  the  one  known  as  the  'Gen- 
eral War  Commissariat,'  and  having  charge  of  the  army,  the 
other  known  as  the  'General  Finance  Directory/  commissioned 
to  get  the  best  possible  returns  from  the  domains;  and  here  and 
there  throughout  the  provinces  there  were  'War  Commissariats  ' 
and  'Domains  Chambers '  which  were  the  local  branches  of  the 
two  great  central  departments.2  These  two  departments  and 
their  provincial  ramifications  were,  however,  instead  of  being 
coordinated,  kept  quite  distinct  from  each  other,  clashing  and 
interfering  in  their  activities  rather  than  cooperating. 

Fusion  of  Departments  of  War  and  Domains.  —  Such  at 
least  was  the  system  under  the  Great  Elector  and  his  immediate 
successor,  Frederic  I.,  if  system  that  can  be  called  which  was 
without  either  unity  or  coherence.  Frederic  William  I.  united 
War  and  Domains  under  a  single  central  board,  to  be  known  as 
the  'General  Supreme  Financial  Directory  for  War  and  Domains,' 
and  brought  the  local  war  and  domains  boards  together  in  the 
provinces  as  Chambers  for  War  and  Domains.  Under  this  ar- 
rangement the  various  *  war  councillors  '  who  served  the  provin- 
cial Chambers  were  charged  with  a  miscellany  of  functions. 
Besides  the  duties  which  they  exercised  in  immediate  connection 
with  military  administration,  they  were  excise  and  police  com- 
missioners, and  exercised  in  the  cities  many  of  the  civil  functions 
which  had  formerly  belonged  to  other  direct  representatives  of 
the  Crown.  In  the  rural  districts  the  Chambers  were  served  in 
civil  matters  by  the  several  Landrdthe. 

Differentiation  of  Central  Bureaux.  —  This  arrangement 
speedily  proved  as  cumbrous  as  the  name  of  its  central  organ,  and 
an  internal  differentiation  set  in.  The  General  Directory  sepa- 
rated into  Committees;  and,  as  time  went  on,  these  committees 
began  to  assume  the  character  of  distinct  Ministries, — though 
upon  a  very  haphazard  system.  Frederic  the  Great  further  con- 
fused the  system  by  creating  special  departments  immediately 

1  The  ariny  consumed  about  five-sevenths  of  the  entire  revenue. 

2  Seeley,  Life  and  Times  of  Stein,  Vol.  L,  Chap.  II.     Also  Tuttle,  Vol.  I., 
pp.  421,  422. 


470  THE   GOVERNMENTS   OF   GERMANY. 

dependent  upon  himself  and  a  special  cabinet  of  advisers  having 
no  connection  with  the  General  Directory.  He  was  himself  the 
only  cohesive  element  in  the  administration:  it  held  together 
because  clasped  entire  within  his  hand. 

Reforms  of  Stein  and  Hardenberg.  —  Order  was  at  last 
introduced  into  the  system  through  the  influence  of  Baron  vom 
Stein  and  the  executive  capacity  of  Count  Hardenberg,  the  two 
most  eminent  ministers  of  Frederic  William  III.,  who  together 
may  be  said  to  have  created  the  present  central  administration 
of  Prussia.  Prussia  owes  to  the  genius  of  Stein,  indeed,  the 
main  features  of  both  her  central  and  her  local  organization. 
Her  central  organization  is  largely  the  direct  work  of  his  hands; 
and  her  local  organization  derives  its  principles  from  his  thought 
not  only,  but  also  from  the  provisions  of  the  Ordinance  by 
which  he  reconstructed  the  administration  of  the  towns. 

Reform  of  Local  Government  before  1872.  —  The  county 
law  (Kreisordnung)  of  the  13  December,  1872,  has  been  called 
the  Magna  Charta  of  Prussian  local  government.  Upon  it  all 
later  changes  and  modifications  rest.  Between  the  period  of 
Stein's  reforms  and  the  legislation  of  1872  the  organization  of 
local  government  was  substantially  as  follows : l  The  provinces 
were  divided  into  '  Government  Districts,'  as  afterwards,  the  Gov- 
ernment Districts  into  '  Circles  '  or  Counties.  An  administrative 
Board  established  in  the  Government  District  was  then,  as  after- 
wards, the  vital  organ  of  local  administration.  In  the  province 
there  was  also  a  board,  exercising  general  supervisory  powers,  the 
eye  of  the  central  bureaux  in  the  larger  affairs  of  administration, 
the  affairs,  that  is,  which  extended  beyond  the  area  of  a  single 
Government  District ;  and,  as  the  chief  officer  of  the  province,  a 
'  Superior  President'  of  influential  position  and  function.  But 
alongside  of  this  quite  modern  machinery  stood  the  old  provincial 
Estates  (revived  in  1853),  representing,  not  the  people,  but  the 
social  orders  of  a  bygone  age,  and  possessing  certain  shadowy 
powers  of  giving  advice.  In  the  '  Circle '  or  County,  there  was 
still  the  Landrathj  as  formerly,  appointed  from  a  list  of  local 

1  See  R.  B.  D.  Morier's  essay  on  Local  Government  in  Germany,  in  the 
volume  of  Cobden  Club  Essays  for  1875. 


THE   GOYKHN.MENTS   OF   GERMANY.  471 

landed  proprietors,  and  associated  with  the  ' Estates  of  the  Circle/ 
a  body  composed  of  the  county  squires  and  a  few  elected  repre- 
sentatives from  the  towns  and  the  rural  townships,  — a  body  of 
antiquated  pattern  recalled  to  life,  like  the  Estates  of  the  prov- 
ince, in  1853.  In  the  towns,  which  had  directly  received  the 
imprint  of  Stein's  reforming  energy  and  sagacity,  administration 
was  conducted  by  boards  of  magistrates  chosen  by  popular  coun- 
cils and  associated  with  those  councils  in  all  executive  business 
by  means  of  a  joint-committee  organization,  the  burgomasters 
being  presidents  rather  than  chief  magistrates. 

Landgemeinde  and  Manors. — Besides  these  areas  of  adminis- 
tration there  were  rural  communes  (Landgemeinde)  still  connected,  quite 
after  the  feudal  fashion,  with  adjacent  or  circumjacent  manors,  their  gov- 
ernment vested  in  a  Schulze  and  two  or  more  Schoffen  (sheriffs  or  justices), 
the  former  being  appointed  either  by  the  lord  of  the  manor,  or,  if  the 
village  was  a  free  village,  as  sometimes  happened,  by  the  owner  of  some 
ancient  freehold  within  the  commune  with  which  manorial  rights  had 
somehow  passed.  The  commune  had,  besides,  either  a  primary  or  an 
elective  assembly.  The  communes  were  often  allowed,  under  the  super- 
vision of  the  official  board  of  the  Government  District,  to  draw  up  charters 
for  themselves,  embodying  their  particular  local  laws  and  privileges. 
Within  the  manors  police  powers,  poor-relief,  the  maintenance  of  roads, 
etc.,  rested  with  the  proprietor.  Local  government  was  within  their 
borders  private  government. 

Reform  of  1872.  —The  legislation  of  1872  took  the  final 
steps  towards  getting  rid  of  such  pieces  as  remained  of  the  anti- 
quated system.  It  abolished  the  hereditary  jurisdiction  of  the 
manor  and  the  dependent  office  of  Schulze,  and  established  in 
place  of  the  feudal  status  an  equal  citizenship  of  residence.  In 
place  of  the  Estates  of  the  province  and  county  it  put  real  repre- 
sentative bodies.  It  retained  the  Land-rath,  but  somewhat  cur- 
tailed his  powers  in  the  smaller  areas  within  the  Circle,  and 
associated  with  him  an  effective  administrative  board,  of  which 
he  became  little  more  than  president.  It  carried  out  more 
thoroughly  than  before  in  the  various  areas  the  principle  of 
board  direction,  integrating  the  lesser  with  the  greater  boards, 
and  thus  giving  to  the  smaller  areas  organic  connection  with 
the  larger.  It  reformed  also  the  system  of  local  taxation. 


472  THE   GOVERNMENTS    OF   GERMANY. 

It  is  upon  this  legislation  that  the  system  of  local  government 
later  obtaining  in  Prussia  was  erected.1 

The  Central  Executive  Departments.  —  Stein's  scheme  for 
the  development  of  the  central  organs  of  administration  brought 
into  existence  five  distinct  ministries,  which  no  longer  masquer- 
aded as  committees  of  a  cumbrous  General  Directory,  and  whose 
functions  were  distributed  entirely  upon  a  basis  of  logical  distinc- 
tion, not  at  all  upon  any  additional  idea  of  territorial  distribution. 
These  were  a  Ministry  of  Foreign  Affairs,  a  Ministry  of  the 
Interior,  a  Ministry  of  Justice,  a  Ministry  of  Finance,  and  a 
Ministry  of  War.  This,  however,  proved  to  be  by  no  means  a 
final  differentiation.  The  Ministry  of  the  Interior  was  at  first 
given  a  too  miscellaneous  collection  of  functions,  and  there  split 
off  from  it  in  1817  a  Ministry  of  Ecclesiastical,  Educational,  and 
Sanitary  Affairs,  and  in  1848  a  Ministry  of  Trade,  Commerce,  and 
Public  Works  and  a  Ministry  of  Agriculture.  In  1878  a  still 
further  differentiation  took  place.  The  Ministry  of  Finance,  re- 
taining distinct  reminiscence  of  its  origin  in  the  administration 
of  the  royal  domains,  had  hitherto  maintained  a  Department  of 
Domains  and  Forests.  That  department  was  in  1878  transferred 
to  the  Ministry  of  Agriculture.  At  the  same  time  the  Ministry 
of  Trade,  Commerce,  and  Public  Works  was  divided  into  two,  a 
Ministry  of  Trade  and  Commerce  and  a  Ministry  of  Public 
Works. 

There  were,  then,  nine  ministries  :  (1)  a  Ministry  of  Foreign 
Affairs  (Stein,  1808);  (2)  a  Ministry  of  the  Interior  (1808); 
(3)  a  Ministry  of  Ecclesiastical,  Educational,  and  Sanitary  Affairs 
(1817) ;  (4)  a  Ministry  of  Trade  and  Commerce  (1848)  ;  (5)  a 
Ministry  of  Agriculture  (1848),  Domains,  and  Forests  (1878)  ; 
(6)  a  Ministry  of  Public  Works  (1878) ;  (7)  a  Ministry  of  Justice 
(1808)  ;  (8)  a  Ministry  of  Finance  (1808)  ;  and  (9)  a  Ministry  of 
War  (1808). 

The  Council  of  State.  —  Most  of  these  ministries  were 
created  before  Prussia  had  any  parliamentary  system,  and  when, 
consequently,  there  was  no  instrumentality  in  existence  through 
which  there  could  be  exercised  any  legislative  control  over  the 
executive.  Stein  would  have  revived  for  the  exercise  of  some 

i  Morier,  p.  434. 


THE   GOVERNMENTS    OF   GERMANY.  473 

such  function  the  ancient  Council  of  State  (Staatsrath)  founded 
by  Joachim  Friedrich  in  1604,  which  had  at  first  presided  over 
all  administration  but  whose  prerogatives  of  oversight  and 
control  had  gradually  decayed  and  disappeared.  This  council, 
which  bore  a  general  family  resemblance  to  the  English  Privy 
Council,  had  a  mixed  membership  made  up  in  part  of  princes  of 
the  blood  royal,  in  part  of  certain  civil,  military,  and  judicial 
officials  serving  ex  officio,  and  in  part  of  state  officials  specially 
and  occasionally  summoned.  It  was  Stein's  purpose  to  rehabili- 
tate this  body,  which  was  in  a  sense  representative  of  the  classes 
standing  nearest  to  government  and  therefore  presumably  best 
qualified  to  test  methods,  and  to  set  it  to  oversee  the  work  of  the 
ministers :  to  serve  as  a  frame  of  unity  in  the  administration 
without  withdrawing  from  the  ministers  their  separate  responsi- 
bility and  freedom  of  movement.  This  part  of  his  plan  was  not, 
however,  carried  out,  and  the  Council  of  State,  though  still  exist- 
ing, a  shadow  of  its  former  self,  never  regained  its  one-time 
prominence  in  administration. 

Staatsministerium.  —  Instead  of  adopting  Stein's  plan, 
Count  Hardenberg  integrated  the  several  ministries  by  establish- 
ing the  Ministry  of  State,  or  College  of  Ministers  (Staatsminis- 
terium)) which  stood  in  much  the  same  relation  to  Prussian 
administration  that  the  French  Council  of  Ministers  (page  157) 
occupies  towards  administration  in  France,  though  it  in  some 
respects  resembled  also  the  French  Council  of  State  (page  173). 
It  was  composed  of  the  heads  of  the  several  ministries  and  met, 
once  a  week  or  oftener,  for  the  consideration  of  all  matters  which 
concerned  all  the  executive  departments  alike,  to  discuss  proposed 
general  laws  or  constitutional  amendments,  to  adjust  conflicts 
between  departments,  to  hear  reports  from  the  ministers  as  to 
their  policy  in  the  prosecution  of  their  separate  work,  to  exercise 
a  certain  oversight  over  local  administration,  to  concert  measures 
to  meet  any  civil  exigency  that  might  arise,  etc.  It  served  to 
give  unity  and  coherence  to  administration. 

The  Supreme  Chamber  of  Accounts.  —  The  same  purpose 
was  served  by  the  Supreme  Chamber  of  Accounts  (Oberrechnungs- 
Jcammer)  and  by  the  Economic  Council  (Volkswirthschaftsrath). 
The  Supreme  Chamber  of  Accounts  was  founded  in  1714  by 


474  THE   GOVERNMENTS    OF   GERMANY. 

Frederic  William  I.  Its  members  had  the  tenure  and  responsi- 
bility of  judges.  Its  president  was  appointed  by  the  Crown  on  the 
nomination  of  the  Ministry  of  State  ;  its  other  members  were  ap- 
pointed by  the  Crown  upon  the  nomination  of  its  president, 
countersigned  by  the  president  of  the  Ministry  of  State.  It  con- 
stituted a  distinct  branch  of  the  government,  being  subordinate, 
not  to  the  Ministry  of  State,  but  directly  responsible  to  the  Crown. 
Its  duty  was  the  careful  oversight  and  revision  of  the  accounts  of 
income  and  expenditure  from  all  departments ;  and  the  oversight 
of  the  state  debt  and  of  the  acquisition  and  disposition  of  prop- 
erty by  the  state.  It  watched,  in  brief,  the  detailed  adminis- 
tration of  the  finances,  and  was  the  judicial  guardian  of  the  laws 
concerning  revenue  and  disbursement. 

The  Economic  Council.  —  The  Economic  Council  considered 
proposals  for  laws  or  ordinances  affecting  weighty  economic  in- 
terests which  fell  within  the  domains  of  the  three  ministries  of 
Trade  and  Commerce,  of  Public  Works,  and  of  Agriculture.  Such 
proposals,  as  well  as  the  proposals  for  the  repeal  of  such  laws 
and  ordinances,  might  be  submitted  to  its  debate  before  going  to 
the  king  for  his  approval.  It  was  also  privileged  to  consider  the 
question  how  Prussia's  votes  should  be  cast  upon  such  matters  in 
the  Bundesrat.  Of  course,  however,  its  part  in  affairs  was  merely 
consultative.  It  was  composed  of  seventy-five  members  appointed 
by  the  king  for  a  term  of  five  years,  forty-five  of  this  number 
being  appointed  upon  the  nomination  of  various  chambers  of  com- 
merce, mercantile  corporations,  and  agricultural  unions. 

The  Ministers  in  the  Legislature.  —  The  king  —  or,  more 
properly,  the  Administration  —  was  represented  in  the  legislative 
houses  by  the  ministers,  who  need  not  be  members  in  order  to 
attend  and  speak  on  the  public  business. 

The  Landtag  :  the  House  of  Lords.  —  The  Prussian  Land- 
tag, or  Legislature,  consisted  of  two  houses,  a  House  of  Lords 
(Herrenhaus)  and  a  House  of  Representatives  (Abgeordnetenhaus). 
The  House  of  Lords  might  better  be  described  as  a  house  of  classes. 
It  contained  not  only  hereditary  members  who  represented  rights 
of  blood,  but  also  life  members  who  represented  landed  properties 
and  great  institutions,  and  officials  who  represented  the  civil  hier- 
archy. There  sat  in  it  princes  of  the  blood  royal  nominated  to 


THE   GOVERNMENTS   OF   GERMANY.  475 

membership  by  the  king ;  the  heads  of  families  once  royal  whose 
domains  had  been  swallowed  up  by  Prussia ;  certain  greater  noble- 
men appointed  by  the  Crown,  together  with  eight  others  elected  by 
the  resident  landowners  of  the  provinces ;  the  four  chief  officials 
of  the  province  of  Prussia  (the  Supreme  Burggraf,  the  High  Mar- 
shal, the  Grand  Master  of  the  Teutonic  Order,  and  the  Chan- 
cellor) ;  and  a  great  number  of  life  members  appointed  by  the 
king  upon  the  presentation  of  various  bodies :  certain  evangelical 
foundations,  namely,  certain  colleges  of  counts,  and  of  land- 
holders of  great  and  ancient  possession,  the  nine  universities, 
and  forty-three  cities  which  received  the  right  of  nomination. 
The  king  could,  besides,  issue  special  summons  to  sit  in  the 
House  of  Lords  to  such  persons  as  he  thought  worthy.  There 
was  no  limit  placed  upon  the  number  of  members,  —  the  only 
restriction  concerned  age :  members  must  be  at  least  thirty 
years  old.  The  number  of  members  was  about  300.  Of  these 
quite  one-third  were  of  the  landed  nobility,  and  almost  as  many 
more  were  the  nominees  of  the  landed  classes  ;  so  that  the  House 
stood  for  the  loyalty  to  the  Crown  and  opposition  to  liberal 
change. 

The  House  of  Representatives.  —  Though  in  a  sense  repre- 
senting every  Prussian  twenty-five  years  of  age  who  was  not 
specially  disqualified  to  vote,  it  was  not  constituted  by  a  direct 
popular  franchise,  or  even  by  an  equal  suffrage.  The  vote  was  in- 
direct and  was  proportioned  to  taxable  property.  The  country 
was  divided  into  districts ;  the  qualified  voters  of  each  district 
were  divided  into  three  classes  in  such  a  way  that  each  class 
should  represent  one-third  of  the  taxable  property  of  the  district ; 
each  of  these  classes  selected  by  vote  a  third  of  the  number  of 
electors  to  which  the  district  was  entitled ;  and  the  electors  so 
chosen  elected  the  members  of  the  House  of  Representatives. 

The  Electoral  System.  —  One  elector  was  chosen  for  every 
two  hundred  and  fifty  inhabitants ;  the  voting  was  not  by  the 
ballot,  but  was  public,  and  an  absolute  majority  of  the  electors  was 
required  to  elect.  The  total  number  of  members  of  the  House 
was  443.  The  term  was  five  years.  Any  Prussian  who  was  thirty 
years  of  age  and  in  full  possession  of  civil  rights  might  be  chosen. 
In  case  a  vacancy  occurred  in  the  House,  no  choice  of  electors 


476  THE  GOVERNMENTS   OF   GERMANY. 

was  necessary.      Once  chosen,  the  electors  were  competent  to  act 
throughout  the  legislative  term. 

It  need  hardly  to  be  remarked  that  the  division  of  the  primary 
voters  into  classes  according  to  the  amount  of  taxes  they  pay  gave 
a  preponderance  to  wealth.  The  three  classes  were  of  course  very 
unequal  in  numbers.  It  required  a  comparatively  small  number 
of  rich  men  to  represent  one-third  of  the  taxable  property  in  a 
district ;  it  took  a  considerably  larger  number  of  the  well-to-do 
to  represent  another  third  ;  and  the  last  third  was  represented  by 
the  great  majority  of  the  inhabitants  of  the  district.  For  the 
classes  were  not  constituted  with  a  view  to  distributing  the  small 
taxpayers  and  equalizing  the  classes  numerically.  Those  who 
paid  most  taxes  constituted  the  first  class ;  those  who  paid  less, 
the  second  ;  those  who  paid  least  or  none,  the  third ;  and  it  might 
thus  very  well  happen  that  a  very  small  number  of  persons 
elected  a  third  of  the  electors. 

Equality  and  Competence  of  the  House.  —  The  consent 
of  both  Houses  was  necessary  to  the  passage  of  a  law,  and  they 
stood  upon  a  perfect  equality  as  regards  also  the  right  of  initiative 
in  legislation,  —  except  that  all  financial  measures  must  originate 
in  the  lower  house,  and  that  the  upper  house  could  pass  upon  the 
budget,  which  must  be  presented  first  to  the  House  of  Represent- 
atives, only  as  a  whole.  The  Lords  could  not  amend  the  budget 
in  part :  they  must  accept  or  reject  it  entire. 

The  King' s  Power  of  Adjournment  and  Dissolution. — The  king 
could  adjourn  the  House  of  Representatives  for  a  period  not  exceeding 
thirty  days,  once  during  any  one  session  without  its  consent.  He  could 
also  dissolve  it.  When  a  dissolution  was  resorted  to  he  must  order  a  new 
election  within  sixty  days,  and  the  newly  elected  House  must  assemble 
within  ninety  days.  (Compare  p.  155.) 

Local  Government.  —  The  organization  of  local  govern- 
ment in  Prussia  is  [rendered  complex  by  a  mixture  of  historical 
and  systematic  elements  :  it  is  compounded  of  old  and  new,  —  of 
the  creations  of  history  and  the  creations  of  Stein  and  Gneist. 
Stein's  hand  is  even  more  visible  in  local  organization  in  Prussia 
than  in  the  organization  of  the  central  ministries.  More  conserva- 
tive than  the  Constituent  Assembly  and  Napoleon  in  France,  he 
did  not  sweep  away  the  old  provinces  of  Prussia,  whose  bounda- 


Tl IK   GOVERNMENTS   OF   GERMANY.  477 

,  like  those  of  the  French  provinces  of  the  old  regime,  were 
set  deep  in  historical  associations.  The  twelve  provinces  were 
given  a  place,  —  a  function  of  superintendence,  —  in  the  new  sys. 
tern  established.  The  country  was,  indeed,  divided  into  Districts 
(Bezirke)  corresponding  in  general  character  and  purpose  with 
the  French  Departments ;  but  these  Districts  were  grouped  under 
a  superintendent  provincial  organization.  There  were,  therefore, 
in  Prussian  local  organization  (1)  the  Province,  (2)  the  Govern- 
ment District,  (3)  the  Circle  (Kreis)  or  County,  and  (4)  the  town- 
ship and  the  town.  The  township  and  the  town  were  coordinate, 
standing  in  the  same  rank  of  the  series. 

The  usual  organs  of  local  government  throughout  all  the  series 
of  the  Prussian  system  were  u  first,  a  representative  body  with 
an  exclusive  control  over  the  economic  portion  of  the  communal 
business ;  secondly,  an  executive  board  with  an  exclusive  con- 
trol over  the  public  portion  of  the  communal  business ;  thirdly, 
mixed  committees,  composed  of  members  of  both  bodies,  for  the 
ordinary  management  of  the  affairs  of  the  community ;  fourthly, 
the  division  of  the  communal  area  into  administrative  districts 
under  overseers  responsible  to  the  executive  board." l 

The  Province.  —  There  were  in  the  Province  two  sets  of 
governmental  organs :  one  of  which  represented  the  state  and  its 
oversight,  the  other  the  Province  and  its  self-government. 
(1)  The  state  is  represented  by  a  Superior  President^  and  a  Pro- 
vinzialrat  associated  with  him.  The  original  purpose  in  retain- 
ing the  provincial  organization  was  to  secure  broad  views  of 
administration  through  officials  charged  with  the  oversight  of 
extended  areas  and  so  elevated  above  the  near-sightedness  of  local 
routine  and  detail.  Nearer  to  the  particulars  of  local  adminis- 
tration than  the  minister  at  Berlin,  but  not  so  near  as  the  officials 
of  the  Government  Districts,  the  provincial  representatives  of 
the  state  were  charged  with  the  care  "  of  all  such  affairs  as  concern 
the  entire  province  or  stretch  beyond  the  jurisdiction  of  a  single 
[district]  administration."2  These  were  such  matters  as  affect 

1  R.  B.  D.  Morier,  Cobden  Club  Essays  (1876)  on  Local  Government  and 
Taxation,  p.  433. 

2  Schulze,  Das  Staatsrecht  des  Konigreichs  Preussen  (in  Marquardsen's 
lliindhuch),  p.  03. 


478  THE   GOVERNMENTS    OF   GERMANY. 

imperial  interests  or  the  whole  Prussian  state ;  the  concerns  of 
public  institutions  whose  functions  extend  beyond  a  District; 
insurance  companies  ;  extensive  plans  of  improvement ;  road  and 
school  management,  etc.  In  exercising  most  of  these  functions 
the  provincial  authorities  acted,  however,  not  through  officers  of 
their  own,  but  through  the  District  Administrations.  There  lay 
with  the  Superior  President,  also,  the  duty  of  overseeing  district 
administration,  the  provincial  tax  directors,  and  the  general 
Commission  for  the  regulation  of  the  relations  between  landlords 
and  tenants.  He  represented  the  central  government,  too,  in  all 
special,  occasional  duties,  and  under  all  extraordinary  circum- 
stances. He  had,  besides,  initial  jurisdiction  in  cases  of  conflict  be- 
tween District  Administrations,  or  between  such  Administrations 
and  specially  commissioned  officials  not  subject  to  their  orders. 

The  extraordinary  powers  of  the  '  Superior  President '  are  illustrated 
by  the  fact  that,  in  case  of  serious  civil  disturbance,  of  war  or  the  danger 
of  war,  he  was  authorized  to  assume  the  whole  authority  of  administra- 
tion, local  as  well  as  general,  within  the  Province.  In  overseeing  the 
District  Administration,  however,  he  had  no  executive,  but  only  advisory, 
powers.  He  was  merely  the  eye  of  the  Ministries  at  Berlin,  advising  them 
of  all  matters  needing  their  action.  Like  the  French  Prefect,  he  was  the 
servant  of  all  Ministries  alike,  though  most  directly  and  intimately  asso- 
ciated with  the  Ministry  of  the  Interior.  The  defect  of  the  provincial 
organization  in  Prussia  was  said  to  be  lack  of  vitality.  Critics  like  Pro- 
fessor Gneist  thought  that  it  rendered  the  system  of  local  government 
cumbrous  without  adding  to  its  efficacy.  It  was  too  much  restricted  to 
gratuitous  advice,  and  too  little  authorized  to  take  authoritative  action. 

The  Provinzialrat,  the  administrative  Council  associated  with  the 
Superior  President,  consisted,  besides  the  President  or  his  repre- 
sentative as  presiding  officer,  of  one  professional  civil  official  of 
high  rank,  appointed  by  the  Minister  of  the  Interior,  practically 
for  life,  and  of  five  lay  members  chosen  by  the  Provincial  Committee 
for  a  term  of  six  years.  The  assent  of  the  Provinzialrat  was 
necessary  to  every  ordinance  issued  by  the  Superior  President. 

(2)  The  organs  representing  the  Province  and  its  self-gov- 
ernment were  the  Provincial  Landtag,  the  Provincial  Committee, 
and  the  Landeshauptmann  or  Landesdirektor.  In  a  Prussian  law 
concerning  local  government  the  province  is  described  as  "a 
communal  union  established  with  the  rights  of  a  corporation  for 


THE   GOVERNMENTS    OF    GERMANY.  479 

self-government  of  its  own  affairs." l  The  provincial  legislative 
body,  the  Landtag,  was  composed  of  representatives  elected  from 
the  Circles  or  Counties  by  the  Diets  of  the  Circles :  for,  when 
looked  at  from  the  point  of  view  of  self-government,  the  Province 
was  a  union  of  Circles,  not  of  Districts  :  the  Districts  were  organs 
of  the  central  government  only.  The  functions  of  the  Landtag 
lay  within  the  narrow  field  of  such  matters  as  the  apportionment 
of  taxes  among  the  Circles  (which  in  their  turn  apportioned  them 
among  individuals),  the  examination  of  the  local  budget,  the  care 
of  provincial  property,  and  the  election  of  certain  officials, — 
though  it  was  at  liberty  to  take  cognizance  of  anything  that  was 
of  local  concern. 

It  might  also,  on  occasion,  give  its  opinion  on  bills  concerning  the 
Province  and  on  other  matters  referred  to  it,  for  an  expression  of  opinion, 
by  the  authorities  at  Berlin.  The  Superior  President  could  be  present  at 
its  sessions  and  could  annul  all  acts  in  which  it  overstepped  its  jurisdiction. 
Its  by-laws  were  subject  to  the  Crown's  approval,  as  were  also  many  of  its 
votes  of  appropriation  ;  and  the  king  might  dissolve  it. 

The  Landtag  elected  the  Provincial  Committee  and  the  Landes- 
hauptmann, who  were  the  executive  organs  of  provincial  self- 
government.  The  Landeshauptmann  and  the  Committee  stood 
related  to  each  other  very  much  as  do  the  Superior  President  and 
Provinzialrat,  or  the  French  Prefect  and  the  Pref ectural  Council : 
the  Landeshauptmann  was  the  executive,  the  Committee  the  ad- 
visory organ  of  local  self-administration,  though  it  in  effect 
directed  the  action  of  the  Landeshauptmann  in  most  matters. 

The  spheres  of  the  representatives  of  the  state  and  of  the 
representatives  of  local  self-government  were  quite  sharply  dis- 
tinguished in  Prussia.  The  Provincial  Committee  and  the 
Landeshauptmann  had  nothing  to  do  with  the  general  adminis- 
tration :  that  was  altogether  in  the  hands  of  the  Superior  Presi- 
dent and  the  Provinzialrat,  who  on  their  part  had  nothing  to  do 
with  local  self-government.  The  sphere  of  local  self-government, 
though  narrow,  was  somewhat  more  guarded  against  the  constant 
interference  of  the  central  authorities  in  Prussia  than  in  France. 
(Compare  page  170.) 

1  Schulze,  Das  Staatsrecht  des  Konigreichs  Preussen  (in  Marquardsen's 
Handbuch},  p.  85. 


480  THE   GOVERNMENTS    OF   GERMANY. 

The  Government  District  (Regierungsbezirk).  —  Unlike  the 
Province,  the  Government  District  had  no  organs  of  self-gov- 
ernment: it  was  exclusively  a  division  of  state  administration. 
Its  functionaries  were  the  principal,  —  it  may  even  be  said  the  uni- 
versal, —  agents  of  the  central  government  in  the  detailed  conduct 
of  administration :  they  were  charged  with  the  local  management 
of  all  affairs  that  fall  within  the  sphere  of  the  Ministries  of  the 
Interior,  of  Finance,  of  Trade  and  Commerce,  of  Public  Works, 
of  Agriculture,  of  Ecclesiastical  and  Educational  Affairs,  and  of 
War,  exclusive,  of  course,  of  such  matters  as  were  exceptionally 
entrusted  to  officers  specially  commissioned  for  the  purpose.  In 
brief,  they  served  every  ministry  except  the  Ministry  of  Justice. 

Collectively  the  functionaries  of  the  District  were  called  the 
'  Administration '  (Regierung),  and  their  action  is  for  the  most 
part  collegiate,  i.e.,  through  Boards.  The  exception  to  this  rule 
concerned  matters  falling  within  the  province  of  the  Ministry  of 
the  Interior.  That  Ministry  acted  in  the  District,  not  through  a 
board  of  officials,  but  through  a  single  official,  the  President  of 
the  Administration  (Regierungsprdsident).  In  dealing  with  all 
other  matters  the  action  was  collegiate  ;  but  the  Boards  were  not 
independent  bodies :  they  were  divisions  (Abteilungeri)  of  the 
'  Administration '  taken  as  a  whole,  and  in  certain  affairs  of  gen- 
eral superintendence  the  '  Administration  '  acted  as  a  single  coun- 
cil (im  Plenum).  Each  Board  was  presided  over  by  a  '  Superior 
Administrative  Councillor '  (Oberregierungsrat) ,  and  that  on  Do- 
mains and  Forests  had  associated  with  it  a  special  functionary 
known  as  the  Forest-master.  The  members  of  the  '  Administra- 
tion '  were  all  appointed  by  the  central  government,  which  placed 
upon  the  Boards  whose  functions  require  for  their  proper  dis- 
charge a  special  training,  certain  so-called  "  technical  members  "  : 
for  instance,  school  experts,  medical  experts,  road-engineers,  and 
technically  instructed  forest  commissioners. 

These  '  Administrations '  took  the  place  of  the  old-time  War 
and  Domains  Chambers,  and  which,  like  the  Administrations, 
acted  through  Boards  as  a  sort  of  universal  agency  for  all  de- 
partments of  government.  In  1883  the  affairs  of  the  Interior 
were  given  into  the  sole  charge  of  the  President  of  the  Adminis- 
tration. Before  that  date  they  also  were  in  the  hands  of  a  Board. 


THE  GOVERNMENTS  OF  GERMANY.         481 

"  Every  head  of  a  department,  as  well  as  every  Rat  and  asses- 
sor, is  bound  each  year  to  make  a  tour  through  a  portion  of  the 
district,  to  keep  an  official  journal  of  all  he  sees,  to  be  afterwards 
preserved  amongst  the  records  of  the  Board,  and  thus  to  make 
himself  practically  acquainted  with  the  daily  life  and  the  daily 
wants  of  the  governed  in  the  smallest  details." l  (Compare  page 
468.) 

The  President  of  the  Administration  (Regierungsprasident)  was 
the  most  important  official  in  the  Prussian  local  service.  Not 
only  did  he  preside  over  the  '  Administration,'  the  general  and 
most  important  agency  of  local  government ;  he  was  also  equipped 
for  complete  dominance.  He  might,  upon  occasion,  annul  the 
decisions  of  the  '  Administration '  or  of  any  of  its  Boards  with 
which  he  did  not  agree,  and,  in  case  delay  seemed  disadvantageous, 
could  himself  command  necessary  measures.  He  could  also,  if  he 
would,  set  aside  the  rule  of  collegiate  action  and  arrange  for  the 
personal  responsibility  of  the  members  of  the  '  Administration/ 
whenever  he  considered  any  matter  too  pressing  to  await  the  meet- 
ing and  conclusions  of  a  Board,  or,  if  when  he  was  himself  present 
where  action  was  needed,  he  regarded  such  an  arrangement  as 
necesary.2  In  brief,  he  was  the  real  governing  head  of  local  adminis- 
tration. The  jurisdiction  of  the  '  Administration '  covered  such 
matters  as  the  state  taxes,  the  churches,  the  schools,  and  the 
public  domain. 

The  District  Committee.  —  Although  the  Government 
District  was  not  an  area  of  self-government,  a  certain  part  in  the 
oversight  of  governmental  action  in  the  District  was  given  to  lay 
representatives  chosen  by  the  provincial  agents  of  the  people. 
A  District  Committee  (Bezirksausschuss),  composed  of  two  pro- 
fessional members  (one  of  whom  must  be  qualified  for  judicial 
office,  the  other  for  the  higher  grades  of  the  administrative 
service)  appointed  by  the  king  for  life,  and  of  four  members 
chosen  by  the  Provincial  Committee  (page  479)  for  a  term  of 
six  years,  was  allowed  an  oversight  of  such  matters  as  it  were 
thought  best  to  put  under  lay  supervision.  The  President  of  the 
Administration  was  ex  ojficio  a  member  of  the  Committee  and  usu- 

iMorier  (Cobden  Club  Essays},  p.  422. 
2  Schulze  (in  Marquardsen),  p.  64. 


482  THE   GOVERNMENTS   OF  GERMANY. 

ally  presided  over  its  sessions.  All  orders  or  arrangements  which 
he  wished  to  make  with  regard  to  local  police  were  subject  to  its 
confirmation,  and  all  questions  regarding  the  control  of  subordi- 
nate local  authorities  fell  to  it.  More  important  than  its  admin- 
istrative functions  were  the  judicial  functions  with  which  it  was 
invested.  Since  1883  the  District  Committee  was  the  Adminis- 
trative Court  of  the  District  (page  488).  When  acting  in 
this  capacity  the  Committee  was  presided  over  by  its  judicial 
member,  and  the  President  of  the  Administration  did  not  sit  with 
it.  The  Government  Districts  numbered  thirty-five,  and  were 
grouped  within  the  twelve  Provinces. 

The  Circle  (Kreis).  —  In  the  Circle,  as  in  the  Province, 
there  emerged  a  double  set  of  functions  :  there  was  the  state  admin- 
istration and,  alongside  of  it,  the  narrower  function  of  self-gov- 
ernment. This  double  set  of  functions  was  performed,  however, 
by  a  single  set  of  functionaries  :  by  a  professional  officer  known  as 
the  Landrat,  associated  with  a  Circle  Committee  (Kreisausschuss), 
which  acted  by  delegation  for  the  Diet  of  the  Circle  (Kreistag), 
the  consultative  and  supervisory  authority.  There  were  not,  as 
in  the  Province,  one  council  and  one  executive  for  the  state, 
another  council  and  another  executive  for  the  locality. 

The  Landrat  and  the  Circle  Committee.  —  The  Landrat 
stood  upon  a  peculiar  footing :  his  office  was  ancient  and  retained 
some  of  its  historical  features.  Originally  the  Landrat  repre- 
sented the  landed  gentry  of  various  districts  of  Brandenburg  ;  he 
was  appointed  upon  their  nomination  and  in  a  sense  represented 
their  interests.  In  some  parts  of  Prussia  traces  of  this  right  of 
presentation  to  the  office  by  the  landowners  remained ;  and  in 
almost  all  parts  of  the  kingdom  the  privilege  of  nomination 
was  transferred  to  the  Circle  Diet,  as  heir  of  the  control  once 
exercised  by  the  local  lords  of  the  soil.  The  Landrat  was,  there- 
fore, formally,  the  representative  of  the  locality  in  which  he 
officiated.  In  reality,  however,  he  was  predominately  the  agent  of 
the  state,  serving  both  the  District  Administration  and  the  de- 
partments at  Berlin.  He  was  appointed  by  the  Superior  President 
of  the  Province  in  which  the  Circle  lay,  and  was  always  a  profes- 
sional officer  who  had  passed,  by  examination,  into  the  higher 
grades  of  the  civil  service.  He  was  chief  of  police  within  the 


THE   GOVERNMENTS   OF   GERMANY.  483 

Circle,  and  superintendent  of  all  public  affairs.  The  Circle  Com- 
mittee was  associated  with  him  in  the  administration  of  his  office 
and  organized  under  his  presidency.  It  consisted,  besides  himself, 
of  six  members  chosen  by  the  Circle  Diet.  It  constituted  the 
Administrative  Court  of  the  Circle  (page  488),  hearing  appeals 
from  the  acts  of  subordinate  officials  as  well  as  supervising  ad- 
ministrative action. 

The  Diet  of  the  Circle  represented,  not  the  people,  but  groups 
of  interests,  —  was  based  upon  the  economical  and  social  re- 
lations of  the  people.  Each  Circle  included  all  towns  lying 
within  it  which  had  less  than  25,000  inhabitants,  and  represen- 
tation in  the  Diet  was  divided  between  town  and  country.  The 
country  representation,  in  its  turn,  was  divided  between  the  rural 
Communes  and  the  greater  landowners. 

The  cities  elected  representatives  either  singly  or  in  groups  ;  if 
singly,  through  their  magistrates  and  councils  acting  together  ;  if 
in  groups,  through  electors  who  assembled  under  the  Presidency 
of  the  Landrat.  As  '  greater  landowners '  were  classed  all  those 
who  paid,  in  their  own  right,  75  thalers  annual  land  or  building 
tax ;  and  these  were  organized  for  electoral  purposes  in  Unions 
(Verbdnde).  The  rural  Communes  elected  in  groups  through 
electors.  The  term  of  members  of  the  Circle  Diet  was  six  years. 
Cities  having  more  than  25,000  inhabitants  constituted  separate 
Circles,  and  combined  in  their  town  governments  both  Circle  and 
Commune  under  the  forms  of  city  government. 

The  Circle  the  Basis  of  Local  Government.  —  A  moment's 
review  of  the  electoral  arrangements  which  underlay  Prussian 
local  government  as  outlined  will  show  how  literally  the  whole 
structure,  so  far  as  it  was  a  system  of  self-government,  rested 
upon  the  electoral  organization  of  the  Circle.  The  Diet  of  the 
Circle  was  the  only  representative  body  I  have  yet  named  which 
was  chosen  by  the  qualified  voters  of  the  locality :  and  it  was  not 
chosen  directly.  The  larger  towns  elected  their  quota  of  members 
through  their  councils,  while  the  smaller  towns  united  and  chose 
through  electors.  The  rural  communes  elected  in  groups,  through 
electors.  The  greater  landowners  sent  their  separate  quota.  And 
then  from  the  Circle  Diet,  when  once  it  was  chosen,  proceeded,  in- 
directly, all  the  other  lay  bodies  of  administration  in  the  larger 


484  THE   GOVERNMENTS   OF   GERMANY. 

areas.  It  nominated  the  Landrat,  elected  the  Circle  Committee, 
and  united  with  the  Diets  of  the  other  Circles  of  the  Province 
in  choosing  the  provincial  Landtag.  The  provincial  Landtag,  in 
turn,  elected  the  Landeshauptmann  and  the  Provincial  Committee. 
The  Provincial  Committee  elected  five  out  of  the  seven  members 
of  the  Provinzialrat  and  four  out  of  the  six  members  of  the 
District  Committee.  Each  Provincial  Committee  chose,  on  an 
average,  two  District  Committees.  It  was  in  only  a  very  re- 
stricted sense  a  system  of  popular  control  in  local  affairs.  It  was 
a  long  way  from  the  people  to  the  District  Committee. 

The  Magisterial  District  (Amtsbezirk).  —  The  rural  Com- 
munes were  grouped  in  Magisterial  Districts  containing  each 
about  fifteen  hundred  inhabitants  ;  and  each  District  was  presided 
over  by  a  Reeve  or  Justice  (Amtsvorsteher  or  Amtsmann)  who  was 
appointed  by  the  king  upon  the  nomination  of  the  Circle  Diet, 
usually  from  among  the  landowners  of  the  locality.  The  Reeve's 
term  was  six  years.  He  was  given  charge  of  the  police  of  the 
District,  and  was  entrusted  with  the  administration  of  the  laws 
for  the  relief  of  the  poor  and  the  preservation  of  health.  As 
police  commissioner  he  was  put  over  the  mayors  of  the  several 
Communes  within  his  district.  He  acted  under  the  supervision 
of  the  Committee  of  the  Circle. 

The  Rural  Commune  (Landgemeinde).  —  The  larger  rural 
Communes  acted  through  small  representative  assemblies  or 
councils,  while  the  less  populous  regulated  their  affairs  by  mass 
meeting.  In  some  Communes  the  executive  officer  was  known  as 
'  mayor/. in  others  as  '  village  judge/  in  still  others  as  '  president.' 
In  most  localities  he  was  assisted  by  one  or  more  aids  or  assessors. 
The  electoral  privilege  was  based  upon  the  three-class  system  of 
voting  already  described,  except  that  those  who  paid  no  taxes 
at  all  were  usually  excluded  from  the  franchise.  The  powers  of 
the  Communes  covered  all  matters  of  strictly  local  interest. 

The  City  Communes  (Stadtgemeinde).  —  Among  the  City 
Communes  there  was  great  variety  of  organization.  In  some  cities 
there  was  a  single  executive,  —  a  single  Burgomaster,  —  perhaps 
assisted  by  certain  Boards ;  in  others  the  Burgomaster  had  col- 
leagues ;  in  still  others  the  magistracy  was  collegiate,  —  was  itself  a 
Board.  In  all  there  were  councils  more  or  less  directly  represent- 


THE   GOVERNMENTS    OF    GERMANY.  485 

ative  of  the  people.  In  the  cities,  as  in  every  other  unit  of  local 
administration,  the  subjects  of  finance,  police,  and  the  military 
were  largely  controlled  from  Berlin ;  and  in  these  branches  of 
administration  the  city  governments  were  agencies  of  the  central 
government.  They  thus  had  a  double  character ;  they  were  at 
one  and  the  same  time  representatives  of  the  authorities  at  the 
capital  and  of  the  citizens  at  home.  When  acting  as  agencies  of 
state  administration  they  were,  of  course,  responsible  to  the 
central  Departments  at  Berlin. 

General  Principles  of  Prussian  Town  Government.  —  Al- 
though without  uniformity  of  structure,  town  government  in 
Prussia  had  certain  uniformities  of  principle  at  its  basis.  The 
mayor  of  a  Prussian  city  was  a  trained  official,  taken  from  the 
professional  service  ;  but  he  was  not  the  Executive  ;  he  was  simply 
president  of  the  executive.  There  was  associated  with  him  a 
board  of  Aldermen  most  of  whose  members  were  elected  from  the 
general  body  of  citizens,  to  serve  without  salary,  but  an  important 
minority  of  whose  members  were  salaried  officials  who,  like  the 
mayor,  had  received  a  thorough  technical  training  in  their  various 
branches  of  administration,  and  whose  tenure  of  office  was  in  effect 
permanent :  and  this  board  of  Aldermen  was  the  centre  of  energy 
and  rule  in  city  government.  But  it  acted  under  check.  A  town 
council  represented  the  citizens  in  the  exercise  of  a  control  over 
the  city  budget,  and  citizens  not  of  the  Council  as  well  as  Coun- 
cilmen  acted  with  the  Aldermen  in  the  direction  of  executive  busi- 
ness. The  Aldermen  did  their  administrative  work  in  Committees, 
and  acted  always  in  association  with  certain  delegations  of  town- 
councilmen  and  certain  '  select  citizens '  named  by  the  council. 
In  the  wards  of  the  larger  towns  the  Aldermen  commanded  also 
the  assistance  of  local  committees  of  citizens,  by  whom  the  condi- 
tions and  needs  of  the  various  districts  of  the  town  were  familiarly 
known.  Thus  in  the  work  of  poor  relief,  in  the  guardianship  of 
destitute  orphans,  in  education,  and  in  tax  assessment  'select 
citizens'  commonly  reinforced  the  more  regular,  the  official,  corps 
of  city  officers.  This  literal  self-government,  which  breaks  down 
the  wall  of  distinction  between  the  official  and  the  non-official 
guardian  of  city  interests  and  presses  all  into  the  service  of  the 
community,  was  not  optional ;  it  was  one  of  the  principles  of  the 


486  THE   GOVERNMENTS    OF   GERMANY. 

system  that  service  as  a  '  select  citizen '  was  to  be  enforced  by  pen- 
alties, —  by  increasing  the  taxes  of  those  who  refused  to  serve. 

The  citizens  chosen  for  ward  work  or  for  consultation  with  the 
central  committees  of  Aldermen  and  town-councillors  included 
merchants,  physicians,  solicitors,  manufacturers,  head-masters  of 
public  schools,  and  like  representative  persons. 

The  three-class  system  of  voting  obtained  also  in  all  municipal 
elections  in  Prussia,  so  that  weight  in  the  electoral  control  of  city 
affairs  was  proportioned  to  tax-assessment.  One-third  of  the 
elected  Aldermen  and  town-councillors  represented  the  wealthy 
class,  one-third  the  middle  class,  one-third  the  '  proletariat.'  It 
was  said  that  in  Berlin  the  first  class  contained  "  less  than  two 
per  cent  of  the  voters,  the  second  class  less  than  thirteen  per  cent, 
and  the  third  eighty-six  per  cent.57  The  arrangement  bred  dis- 
content in  the  lowest  class  and  they  largely  refrained  from  voting. 
The  Administration  of  Justice.  —  The  Prussian  courts  of 
justice,  like  those  of  the  other  states  of  the  Empire,  had  the 
general  features  of  their  organization  and  jurisdiction  prescribed 
by  imperial  law  (p.  465).  They  were  Prussia's  courts  ;  but  they 
also  served  as  courts  of  the  Empire  ;  Prussian  law  commanded  only 
their  personnel  and  their  territorial  competence.  At  the  head  of 
the  system  sat  the  supreme  court  of  the  Empire  (Reiclisgericlif), 
to  which  the  courts  of  all  the  other  states  stood  subordinated.1 
In  each  Province  there  was  a  Superior  District  Court  (Oberlandes- 
gericht),  and,  next  below  it,  a  District  Court  (Landgericht).  In 
each  magisterial  District  there  was  an  Amtsgericht. 

The  Amtsgericht,  which  was  the  court  of  first  instance  in 
minor  civil  cases,  consisted  of  one  or  of  several  judges,  according 
to  the  amount  of  business  there  was  for  the  court  to  despatch  :  for 
when  there  was  more  than  one  judge  the  work  was  not  handled  by 
them  together,  but  separately ;  it  was  divided,  either  logically  or 
territorially. 

The  higher  courts,  the  District  Court,  and  the  Superior  District 
Court  consisted  each  of  a  number  of  judges.  At  the  beginning  of 
each  year,  the  full  bench  of  judges  in  each  court  determined  a 
division  of  the  business  of  the  court  among  themselves,  constituting 

1  Prussia  is  vouchsafed  by  imperial  law  the  privilege  of  retaining  her  own 
supreme  court ;  but  she  has  not  availed  herself  of  the  permission. 


THE   GOVERNMENTS   OF   GERMANY.  487 

themselves  in  separate  '  chambers '  for  separate  classes  of  cases. 
There  was  always  a  '  civil  chamber '  and  a  '  criminal  chamber/  and 
of  ten  a  chamber  for  commercial  cases  (Kammerfiir  Handel  ssachen). 
Each  chamber  had  its  own  president  and  its  own  independent 
organization. 

Minor  criminal  cases  were  tried  in  sheriffs'  courts  (Schoffen- 
gerichte)  sitting  in  the  Magisterial  Districts  ;  more  serious  offences 
by  the  criminal  chamber  of  the  District  Court ;  all  grave  crimes 
by  special  jury-courts  (Schwurgerichte)  which, sat  under  the  presi- 
dency of  three  judges  of  the  District  Court. 

An  appeal  from  a  sheriff's  court  on  the  merits  of  the  case  could 
go  no  further  than  the  District  Court.  Appeals  on  the  merits  of 
the  case  from  the  criminal  chamber  of  the  District  Court  were 
not  allowed;  but  a  case  could  be  taken  from  that  court  to  the 
Superior  District  Court  on  the  ground  of  neglect  of  a  rule  of  law, 
and  on  other  legal  grounds  to  the  Imperial  Court,  for  revision. 

The  nomination  of  all  judges  rested  with  the  king :  but  the 
appointment  was  for  life  and  the  judges  stood  in  a  position  of 
substantial  independence.  The  Minister  of  Justice,  however, 
completely  controlled  all  criminal  prosecutions :  for  no  criminal 
prosecution  could  be  instituted  except  by  the  states-attorneys  who 
represented  the  government  in  the  several  courts,  and  these  held 
their  offices  by  no  permanent  tenure,  but  only  at  the  pleasure  of 
the  Minister. 

Purity  in  the  administration  of  justice  was  sought  to  be  secured 
by  public  oral  proceedings.  Until  a  very  recent  period  all  pro- 
ceedings in  the  Prussian  courts  were  written :  the  plea  and  the 
answer  constituted  the  suit.  Later  public  oral  proceedings  were 
made  imperative. 

The  organization  of  justice  in  Prussia  provided  for  the  assump- 
tion by  the  state  of  a  certain  '  voluntary '  jurisdiction,  some  of 
which,  such  as  the  exercise  of  guardianship  and  the  probate  of 
wills  (which  latter  was  made  a  function  of  the  Amtsgericht)  are 
quite  familiar  to  the  practice  of  other  countries;  but  others  of 
which,  such  as  an  oversight  over  certain  feudal  interests,  are 
somewhat  novel  in  their  character.  The  system  knew  also  certain 
officially  commissioned  Arbitrators  (Schiedsmanner)  and  certain 
trade  judges,  which  were  in  some  respects  peculiar  to  itself. 


488  THE   GOVERNMENTS   OF   GERMANY. 

Administrative  Courts  (Verwaltungsgerichte).  —  The  same 
distinction  between  administrative  and  ordinary  courts  of  justice 
that  we  have  observed  in  France  obtained  also  in  Prussia  (page 
173).  Here  again  appeared  the  organizing  hand  of  Stein.  He 
established  for  Prussia  the  principle  that  cases  arising  out  of  tjie 
exercise  of  the  state's  sovereignty  should  be  separated  in  adju- 
dication from  cases  between  private  individuals  and  should  be  al- 
lotted to  special  courts.  Such  were  cases  of  damage  done  to  an 
individual  through  the  act  of  an  administrative  officer,  or  cases  of 
alleged  illegal  action  on  the  part  of  a  public  official,  —  in  brief,  all 
cases  of  conflict  between  the  public  power  and  private  rights,  as 
well  as  all  questions  between  administrative  authorities. 

The  courts  charged  with  this  jurisdiction  were,  (1)  in  the 
Circle,  the  Circle  Committee  (page  482),  presided  over,  as  in  deal- 
ing with  other  matters,  by  the  Landrat,  and  in  the  cities  which 
themselves  constitute  Circles,  the  City  Committee  (Stadtausschuss), 
consisting  of  the  Burgomaster  as  president  and  four  members, 
all  of  whom  must  be  qualified  for  judicial  service  or  for  the  higher 
grades  of  administrative  office,  elected  by  the  magistracy  of  the 
city,  acting  collegiately,  for  a  term  of  six  years.  (2)  In  the 
Government  District,  the  District  Committee  (page  481),  to  whose 
presidency  when  sitting  in  this  capacity,  the  king  could  appoint, 
as  representative  of  the  President  of  the  Administration,  one 
of  the  members  of  the  'Administration'  under  the  title  of  Di- 
rector of  the  Administrative  Court  (Verwaltungsgerichtsdirektor). 
(3)  The  Superior  Administrative  Court  in  Berlin  (Oberverwaltungs- 
gericht\  whose  members  were  appointed  by  the  king,  with  the  con- 
sent of  the  Council  of  Ministers,  for  life.  This  court  stood  upon 
the  same  footing  of  rank  with  the  supreme  federal  tribunal,  the 
Eeichsgericht.  Its  members  were  qualified,  half  of  them  for  high 
judicial,  half  for  high  administrative  office.  It  acted,  like  the 
other  courts,  in  divisions  or  "senates,"  each  of  which  had  its 
separate  organization ;  and  these  sections  came  together  only  for 
the  settlement  of  certain  general  questions. 

The  Court  of  Conflicts  (Gerichtshof  fur  Kompetenz-kon- 
jlilcte).  —  Between  the  two  jurisdictions,  the  ordinary  or  private 
and  the  administrative,  stood,  as  in  France,  a  Court  of  Conflicts. 
It  consisted  of  eleven  judges  appointed  for  life  (or  for  the  term 


THE   GOVERNMENTS   OF   GERMANY.  489 

of  their  chief  office,  in  case  they  acted  ex  officio)  ;  and  of  these 
eleven  six  were  members  of  the  Superior  District  Court  of  Berlin, 
—  must  belong,  that  is,  to  a  court  of  the  ordinary  jurisdiction. 
The  other  five  were  persons  eligible  to  the  higher  judicial  or 
administrative  offices.  (Compare  p.  174.) 

The  Prussian  Courts  and  Constitutional  Questions.  —  The 

Prussian  courts  had  no  such  power  of  passing  upon  the  constitutionality 
of  laws  as  is  possessed  by  the  courts  of  the  United  States.  They  could  not 
go  beyond  the  simple  question  whether  a  law  had  been  passed,  or,  in 
administrative  cases,  an  official  order  issued,  in  due  legal  form. 

Revolution  in  Germany.  —  At  the  time  this  is  written 
(December  1,  1918)  all  Germany  is  in  a  state  of  revolution.  The 
Emperor  has  abdicated  and  taken  refuge  in  Holland  and  a  pro- 
visional government  has  been  established  with  the  Socialists  in 
control.  Soldiers'  and  Workmen's  Councils  have  been  established 
in  numerous  places  and  have  assumed  control  of  local  affairs.  In 
all  the  monarchical  states  of  the  Empire,  the  rulers  have  abdi- 
cated or  have  been  deposed,  and  it  appears  that  a  democratic  form 
of  government  will  be  established  both  in  the  Empire  and  in  the 
individual  states. 

A  general  election  in  the  Empire  has  been  called  for  January, 
1919  and  upon  the  body  then  chosen  will  devolve  the  task  of 
formulating  the  new  governmental  arrangements. 

This  much  may  safely  be  predicted  —  that  the  Empire  will 
lose  Alsace-Lorraine  and  Prussia  will  lose  that  part  of  Poland 
which  it  acquired  through  the  partitions  of  the  unhappy  country. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Ashley,  Local  and  Central  Government,  London,  1906. 
/>'//•/>•/*,  J.  E.,  Modern  Germany,  new  ed.,  London,  1912. 
Binding,  K.,  Die  Rechtliche  Stellung  des  Kaisers,  Dresden,  1898. 
Borgeaud,  Ch.,  Adoption  and  Amendment  of  Constitutions,  trans,  by 

C.  D.  Hazen  and  J.  M.  Vincent,  N.Y.,  1895. 
Burgess,  J.  W.,  Political  Science  and  Constitutional  Law,  2  vols.,  N.Y., 

1891. 
Dawson,  W.  H.,  Germany  and  the  Germans,  2  vols.,  8vo,  London,  1894. 

and  The  Evolution  of  Modern  Germany,  London,  1908. 


490  THE   GOVERNMENTS    OF   GERMANY. 

Demoiribynes,  G.,  Constitutions  Europeennes,  2  vols.,  8vo.,  Paris,  1883. 
See  Vol.  II.,  pp.  487  and  733. 

Dodd,  W.  F.,  Modern  Constitutions,  2  vols.,  Chicago,  1909. 

Dupriez,  L.,  Les  Ministres  dans  les  principaux  pays  d'Europe  et  d'Ame- 
rique,  2  vols.,  Paris,  1892. 

Fleiner,  F.,  Institutionen  des  deutschen  Verwaltungsrecht,  Tubingen, 
1911. 

Goodnow,  F.  J.,  Comparative  Administrative  Law,  2  vols.,  8vo,  N.Y., 
1893. 

Grais,  Graf  Hue  de,  Handbuch  der  Verfassung  und  Verwaltung  in 
Preussen  und  im  deutschen  Reiche,  8th  ed.,  Berlin,  1907. 

Howard,  B.  E.,  The  German  Empire,  N.Y.,  1906. 

James,  E.  J.,  The  Federal  Constitution  of  Germany  (Translation), 
Am.  Acad.  Social  and  Political  Science,  Phila.,  1890. 

Laband,  Paul,  Das  Staatsrecht  des  deutschen  Reiches,  4  vols.,  4th  ed., 
Tubingen,  1901.  Also,  under  same  title,  a  briefer  commentary  in 
Marquardsen's  Handbuch  des  Oeffentlichen  Rechts  der  Gegenwart, 
Freiburg  in  B.,  1883. 

Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe,  2  vols., 
Boston,  1896. 

Mayer,  O.,  Deutsches  Verwaltungsrecht,  Leipzig,  1895-1896. 

Morier,  R.  B.  D.,  in  Cobden  Club  Essays  on  Local  Government  and 
Taxation,  1875. 

Munro,  W.  B.,  The  Government  of  European  Cities,  N.Y.,  1909. 

Ogg,  F.  A.,  The  Governments  of  Europe,  N.Y.,  1913. 

JRonne,  L.  v.,  Das  Staatsrecht  des  deutschen  Reiches,  2d  ed.,  Leipzig, 
1876.  Das  Staatsrecht  der  preussischen  Monarchic,  5  vols.,  4th 
ed.,  1881-1883. 

Sarwey,  O.  von,  Allgemeines  Verwaltungsrecht,  in  Marquardsen's  Hand- 
buch des  Oeffentlichen  Rechts  der  Gegenwart,  Freiburg  in  B., 
1884,  pp.  112-117. 

Seeley,  J.  R.,  Life  and  Times  of  Stein.  Part  L,  Chap.  V. ;  Part  III., 
Chap.  I. ;  Part  V.,  Chaps.  II.,  III. 

Schulz,  Hermann,  Das  preussische  Staatsrecht,  auf  Grundlage  des 
deutschen  Staatsrechtes,  2  vols.,  Leipzig,  1872-1877.  Das  Staats- 
recht des  Konigreichs  Preussen,  in  Marquardsen's  Handbuch,  Frei- 
burg in  B.,  1884. 

Stengel,  K.  von,  Worterbuch  des  deutschen  Verwaltungsrechts,  2  vols., 
Freiburg  in  B.,  1889-1890. 

Turner,  Saml  Epes,  A  Sketch  of  the  Germanic  Constitution,  N.Y.,  1889. 

Zorn,  P.,  Das  Staatsrecht  des  deutschen  Reiches,  2d  ed.,  Berlin,  1895- 
1897. 


XIV. 
THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY. 


Austria's  Historical  Position.  —  Until  the  middle  of  the 
last  century  Austria  stood  at  the  front  of  German  political 
union ;  not  until  1866  was  she  deposed  from  leadership  in  Ger- 
many and  set  apart  to  attempt  alone  the  difficult  task  of  amalga- 
mating the  polyglot  dual  monarchy  of  Austria-Hungary  (page  445). 

Acquisition  of  Hungary  and  Bohemia.  —  It  was  unques- 
tionably Austria's  headship  in  the  Empire  which  enabled  the 
Habsburg  princes  at  once  to  broaden  and  to  consolidate  their 
domain  in  the  southeastern  border-land  between  Slav  and  Teuton. 
Their  power  and  influence  within  the  Empire  gave  them  their 
opportunity  to  control  the  destiny  of  border  states  like  Bohemia 
and  Hungary,  lying  at  Austria's  doors.  Both  Hungary  and 
Bohemia  fell  to  Habsburg  in  the  same  year,  the  year  1526,  when 
Ferdinand  I.  mounted  their  throne. 

Bohemia.  —  Bohemia  was  a  Slavonic  wedge  thrust  into 
the  side  of  Germany.  Compassed  about  by  hostile  powers,  it 
was  a  prize  to  be  fought  for.  Alternately  conquered  by  several 
neighboring  kingdoms,  it  finally  fell  into  German  hands  and 
became  an  apanage  of  the  Empire.  It  was  as  such  that  the  Habs- 
burgers  seized  it  when  its  throne  became  vacant  in  consequence 
of  the  extinction  of  a  Luxemburg  line  of  princes.  In  1526  their 
hold  upon  it  became  complete,  and  they  were  thenceforth  able  to 
keep  it  secure  as  an  hereditary  possession  within  their  family. 

Moravia.  —  Moravia  also  was  and  is  Slavonic.  Slavs  early 
drove  out  its  Teutonic  possessors,  and  were  prevented  from  joining 
the  Slavs  of  the  southeast  in  the  formation  of  a  vast  Slavonic 
kingdom  only  by  the  intervention  of  the  Magyars,  the  conquerors 

491 


492  THE   GOVERNMENTS    OF    AUSTRIA-HUNGARY 

of  Hungary.  This  dominant  race  in  the  tenth  century  thrust 
themselves  in  between  the  Slavs  of  the  northwest  and  those  of 
the  southeast,  and,  driving  back  the  Slavs  of  Moravia,  reduced  the 
once  '  Great  Moravia '  to  the  dimensions  of  the  present  province. 
Striven  for  by  Hungary,  by  Poland,  and  by  Bohemia,  Moravia 
finally  met  her  natural  fate  in  incorporation  with  Slavonic  Bohe- 
mia (1029),  and  passed,  along  with  that  kingdom,  into  Austrian 
hands,  in  1526. 

Hungary.  —  Hungary  is  the  land  of  the  Magyars,  a  Tura- 
nian race  which  retains  even  to  the  present  day  its  distinctive 
Oriental  features,  habits,  and  bearing  among  the  native  European 
races  about  it.  After  having  suffered  the  common  fortune  of 
being  overrun  by  numerous  barbaric  hordes  at  the  breaking  up  of 
the  Eoman  Empire,  the  territory  of  Hungary  became,  in  889,  the 
realm  of  the  Magyar  duke  Arpa*d,  the  Conqueror.  In  the  year 
1000  the  duke  Vaik,  who  had  succeeded  to  the  duchy  in  997,  re- 
ceived at  the  hands  of  Pope  Sylvester  II.  the  title  of  '  apostolic 
king '  of  Hungary,  and,  under  the  name  of  Stephen,  became  the 
first  of  a  line  of  native  monarchs  which  kept  the  throne  until 
1301.  From  1301  till  1526  kings  of  various  families  and  origins 
won  places  upon  the  throne.  During  this  period,  too,  Hungary 
felt  the  full  power  of  the  Turk,  since  1453  master  of  Constanti- 
nople. The  battle  of  Mohacs  (29  August,  1526)  brought  terrible 
overthrow  upon  the  Hungarian  forces  at  the  hands  of  Soliman 
the  Magnificent,  and  death  to  Louis,  the  Hungarian  king.  Louis 
was  childless ;  his  widow,  Maria,  was  sister  to  Ferdinand  I.  of 
Austria ;  and  it  was  her  influence  which  led  the  more  powerful 
party  of  nobles  within  the  kingdom  to  elect  the  Habsburger  to 
the  throne  and  so  put  Austria  permanently  in  the  Hungarian 
saddle.  Not,  however,  until  1665-1671,  a  period  of  insurrection 
in  Hungary,  did  the  Habsburgers  convert  their  elective  into  an 
hereditary  right  to  the  throne. 

Transylvania,  Slavonia,  Croatia.  —  Transylvania,  Slavonia, 
and  Croatia,  annexed  at  various  times  to  Hungary,  passed  with 
Hungary  to  the  house  of  Habsburg.  Except  during  the  period 
1848  to  1867,  the  period  during  which  Hungary  was  being  disci- 
plined for  her  revolt  of  1848-1849,  these  provinces  remained 
apanages  of  Hungary,  though  Croatia  occupied  a  distinctive 


THE   GOVERNMENTS    OF    AUSTRIA-HUNG  A  It  V.  493 

position,  and  was  always  accorded  a  representative  of  her  own  in 
the  Hungarian  ministry.  From  1848  to  1867  Transylvania, 
Slavonia,  and  Croatia  were  treated  as  Austrian  crown  lands. 

Galicia,  Dalmatia.  —  Galicia,  a  district  much  fought  for 
and  often  divided,  but  for  some  time  attached  to  Poland,  came  to 
Austria  upon  the  first  partition  of  Poland,  in  1772.  Dalmatia, 
once  part  of  ancient  Illyria,  afterwards  a  possession  of  Venice, 
much  coveted  and  sometimes  held  by  Croatia  and  by  Hungary, 
came  to  Austria  through  the  treaty  of  Campo  Formio,  in  1797. 

Bosnia  and  Herzegovina.  —  The  Congress  of  Berlin,  1878, 
which  met  to  fix  upon  a  basis  for  the  new  settlements  resulting 
from  the  victories  of  Russia  over  Turkey,  added  to  Austria's 
multifarious  duties  as  ruler  of  many  races  the  protectorate  of 
Bosnia  and  Herzegovina,  districts  inhabited  by  a  Servian  race  and 
long  subject  to  Turkish  dominion.  They  were  annexed  by  Aus- 
tria in  1908. 

Austria-Hungary:  Nature  of  the  Union.  —  The  constitu- 
tion of  the  Austro-Hungarian  monarchy  practically  recognized 
but  two  parties  to  the  union,  Austria  and  Hungary.  Bohemia, 
for  all  she  had  so  much  individuality  and  boasted  so  fine  a 
history  of  independence,  was  swallowed  up  in  Austria :  only  the 
Magyars  of  Hungary,  among  all  the  races  of  the  heterogeneous 
realm  of  the  Habsburgers,  obtained  for  the  kingdom  of  their 
making  a  standing  of  equality  alongside  of  dominant  Austria. 

Variety  of  Race.  —  The  commanding  difficulty  of  govern- 
ment throughout  the  whole  course  of  Austro-Hungarian  politics 
has  been  the  variety  of  races  embraced  within  the  domain  of  the 
monarchy.  First  and  most  prominent  was  the  three-sided  contrast 
between  German,  Slav,  and  Magyar.  Within  this  general  clas- 
sification, again,  Slav  differed  from  Slav  by  reason  of  many  sharp 
divergencies  of  history,  of  speech,  and  of  religion ;  and  outside 
this  classification,  there  was  added  a  miscellany  of  Italians,  Croats, 
Serbs,  Rumanians,  Jews,  —  men  of  almost  every  race  and  people 
of  eastern  Europe.  This  variety  was  emphasized  by  the  fact  that 
only  the  Czechs  (Bohemians),  among  all  these  peoples,  had  a 
separate  home  land  in  which  they  were  in  the  majority.  In  Bohe- 
mia and  Moravia  the  Czechs  constituted  considerably  more  than 
half  the  population;  whilst  in  Hungary  the  Magyars,  though 


494  THE   GOVERNMENTS    OF    AUSTRIA-HUNGARY. 

greatly  outnumbering  any  other  one  element  of  the  population, 
were  less  than  half  the  whole  number  of  inhabitants  ;  and  in  Aus- 
tria, though  men  of  German  blood  were  very  greatly  in  the  major- 
ity in  the  central  provinces  which  may  be  called  Austria  proper, 
they  constituted  in  Austria  taken  as  a  whole  very  little  more  than 
one-third  of  the  population. 

Home  Rule :  Bohemia,  Hungary.  —  At  least  two  among 
these  many  races,  moreover,  were  strenuously,  restlessly,  persist- 
ently devoted  to  independence.  No  lapse  of  time,  no  defeat  of 
hopes,  seemed  sufficient  to  reconcile  the  Czechs  of  Bohemia  to  in- 
corporation with  Austria.  Pride  of  race  and  the  memories  of  a 
notable  and  distinguished  history  kept  them  always  at  odds  with 
the  Germans  within  their  gates  and  with  the  government  set  over 
their  heads.  They  desired  at  least  the  same  degree  of  autonomy 
that  had  been  granted  to  Hungary. 

Not ' granted J  either.  No  doubt  it  would  be  more  correct  to 
say  the  degree  of  autonomy  won  by  Hungary.  Dominant  in  a 
larger  country  than  Bohemia,  perhaps  politically  more  capable 
than  any  Slavonic  people,  and  certainly  more  enduring  and  defi- 
nite in  their  purposes,  the  Magyars,  though  crushed  by  superior 
force  in  the  field  of  battle,  were  able  to  win  a  specially  recog- 
nized and  highly  favored  place  in  the  dual  monarchy.  Although 
for  a  long  time  a  land  in  which  the  noble  was  the  only  citizen, 
Hungary  has  been  a  land  of  political  liberties  almost  as  long 
as  England  herself  has  been.  The  nobles  of  Hungary  won  from 
their  king,  Andreas  II.,  in  1222,  a  "  Golden  Bull "  which  was  a 
veritable  Magna  Charta.  It  limited  military  service  in  the 
king's  army,  it  regulated  taxation,  it  secured  for  every  noble 
trial  by  his  peers,  it  gave  order  and  propriety  to  judicial  admin- 
istration, it  even  enacted  the  right  of  armed  resistance  to  tyranny. 
The  nobles,  too,  established  their  right  to  be  personally  summoned 
to  the  national  Reichstag.  Standing  upon  these  privileges,  they 
were  long  able  to  defeat  the  absolutism  of  the  Austrian  monarchs. 
Ferdinand  I.  acquired  the  throne  of  Hungary  only  after  recognizing 
her  constitution ;  not  for  more  than  a  hundred  years  did  the  crown 
become  hereditary  in  the  Austrian  house ;  and  not  till  1687  did 
the  ancient  right  of  armed  resistance  lose  its  legal  support. 

The  period  of   reaction   which  followed  the  Napoleonic  wars 


THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY.  495 

and  the  Congress  of  Vienna  found  kings  everywhere  tightening 
where  they  could  the  bonds  of  absolutism :  and  nowhere  were 
those  bonds  more  successfully  strengthened  than  in  Austria- 
Hungary  under  the  reigning  influence  of  the  sinister  Metternich. 
1848,  however,  saw  the  flames  of  insurrection  break  forth  more 
fiercely  in  Hungary  than  anywhere  else  in  terror-stricken 
Europe :  only  by  the  aid  of  Russia  was  Austria  able  once  more 
to  get  control  of  her  great  dependency.  So  completely  was  Hun- 
gary prostrated  after  this  her  supreme  effort  that  she  had  for  a 
little  no  choice  but  to  suffer  herself  to  be  degraded  into  a  mere 
province  of  Austria. 

The  Constitution  of  1867.  —  Wars  and  disasters  presently 
burst  upon  the  absolutist  Austria,  however,  in  an  overwhelming 
storm.  Thrust  out  from  Germany  (page  445)  she  was  made  at 
length  to  feel  the  necessity,  if  she  would  give  her  realm  strength, 
to  give  her  subjects  some  rights.  Her  eyes  were  at  last  opened 
to  the  supreme  folly  of  keeping  the  peoples  under  her  rule  weak 
and  spiritless,  poor  and  motionless,  in  order  that  her  monarchs 
might  not  suffer  contradiction.  She  assented,  accordingly, 
18  February,  1867,  to  a  constitutional  arrangement  which  recog- 
nized the  kingdom,  not  as  Austria's,  but  as  the  joint  kingdom  of 
Austria-Hungary,  and  which  gave  to  the  Empire  its  political 
organization. 

Dual  Character  of  the  Monarchy.  —  The  Austro-Hun- 
garian  monarchy,  although  compacted  by  the  persistent  forces  of 
a  long  historical  development,  was  not  a  unitary  state,  a  territorial 
and  legal  unit,  but  simply  a  "  real  union  of  two  constitutionally 
and  administratively  independent  states."  This  union  was,  in- 
deed, more  substantial  than  that  formerly  existing  between 
Sweden  and  Norway:  the  latter  began  only  in  1815,  and  was 
only  an  arrangement  by  which  two  kingdoms  might  subsist  under 
a  single  king,  as  partners  in  international  undertakings  but  as 
something  less  than  partners  in  affairs  of  nearer  interest ;  while 
Austria-Hungary,  on  the  contrary,  held  as  a  dual  possession  by  a 
single  royal  house  for  more  than  three  hundred  and  fifty  years, 
subjected  by  that  house  to  the  same  military  and  financial  ser- 
vices, and  left  the  while  in  possession  of  only  such  liberties  as 
could  be  retained  by  dint  of  turbulent  insistence,  consisted  of  two 


496  THE   GOVERNMENTS    OF   AUSTRIA-HUNGARY. 

countries  at  many  points  interlaced  and  amalgamated  in  history 
and  in  institutional  life. 

The  Fundamental  Laws.  —  The  constitutional  law  of 
the  dual  kingdom  rested  upon  grants  of  privilege  from  the 
Crown.  It  is  divisible  into  three  parts  :  the  laws  of  the  union, 
the  laws  of  Austria,  and  the  laws  of  Hungary,  (a)  The  laws  of 
the  union  embraced,  beside  various  other  rules  concerning  succes- 
sion to  the  throne,  the  Pragmatic  Sanction  of  1713,  which  was 
formally  adopted  by  the  representatives  of  the  Hungarian  group 
of  states  ;  and  the  identical  Austrian  and  Hungarian  laws,  passed 
in  December,  1867,  which  fixed  the  relations  of  the  two  kingdoms 
to  one  another  and  arranged  for  the  administration  of  their  com- 
mon affairs,  (b)  The  fundamental  law  of  Austria  consisted  of 
various  royal  decrees,  '  diplomas,'  and  patents,  determining  the 
membership,  privileges,  etc.,  of  the  national  Reichsrath  and  of 
the  provincial  Landtags.  Of  these  the  chief  are  five  fundamental 
laws  of  December,  1867,  by  which  a  general  reconstruction  of  the 
government  was  effected,  in  agreement  with  the  new  constitution 
given  to  the  union  in  that  year,  (c)  The  constitutional  arrange- 
ments of  Hungary  rested  upon  the  Golden  Bull  of  Andreas  II., 
1222,  touching  the  privileges  of  the  Estates  (page  494)  ;  upon  cer- 
tain laws  of  1790-1791  concerning  the  political  independence  of 
Hungary,  and  her  exercise  of  legislative  and  executive  powers ; 
upon  laws  of  1847-1848  granting  ministerial  responsibility,  annual 
sessions  of  the  Reichstag,  etc. ;  and  upon  a  law  of  1868  (amended 
in  1873)  whereby  Croatia-Slavonia  was  given  certain  distinct  privi- 
leges to  be  enjoyed  independently  of  Hungary.  These  were  most 
of  them  older  laws  than  the  Austrian.  Although  able  for  long 
periods  together  to  keep  Austria  at  their  feet,  the  Hapsburgers 
were  never  able  to  keep  Hungary  for  long  in  a  similar  attitude  of 
submission.  Her  constitutional  separateness  and  independence, 
though  often  temporarily  denied  in  practice,  were  never  destroyed. 
The  cooperative  rights  of  the  Estates  in  government,  communal 
self-administration,  and  the  privileges  of  the  free  cities  tri- 
umphantly persisted  spite  of  all  efforts  made  to  suppress  them. 

The  Common  Government :  the  Emperor-King.  —  The  Em- 
peror of  Austria  bore  also  the  titles  King  of  Bohemia  and 
'  Apostolic  '  King  of  Hungary  (page  492).  He  stood  at  the  head, 


THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY.  497 

not  of  one  of  the  branches  of  the  government,  but  of  the  whole 
government  in  all  its  branches.  In  theory,  indeed,  he  alone  gov- 
erned :  he  made,  while  legislatures  and  provincial  assemblies  only 
assented  to,  the  laws.  Law  limited  his  powers  :  the  sphere  of  his 
authority  was  fixed  in  each  kingdom  by  definite  constitutional  pro- 
visions ;  but,  whatever  practical  concessions  modern  movements 
of  thought  and  of  revolution  may  have  compelled,  it  yet  remained 
the  theory,  and  to  a  certain  extent  the  fact,  of  constitutional  de- 
velopment in  Austria-Hungary  that  the  monarch  had  himself  of 
his  own  free  will  created  such  limitations  upon  his  prerogative 
as  existed.  There  was,  therefore,  significantly  enough,  nothing  to 
be  said  by  constitutional  commentators  in  Austria-Hungary  either 
concerning  the  king's  veto  or  concerning  any  special  arrange- 
ments for  constitutional  change.  It  was  thought  to  go  without  the 
saying  that  the  monarch's  negative  would  absolutely  kill,  his  '  let  it 
be '  abundantly  vitalize,  all  laws,  whether  constitutional  or  other. 

Succession,  Regency,  etc.  —  The  laws  touching  the ]  suc- 
cession to  the  Austro-Hungarian  throne  provided  so  minutely  for 
the  widest  possible  collateral  inheritances  that  provision  for  a 
vacancy  was  apparently  not  necessary.  Permanent  laws  vested 
the  regency  in  specific  representatives  of  the  royal  house.  The 
royal  age  of  majority  was  sixteen  years. 

The  Common  Ministries.  —  The  Emperor-King  was  assisted 
in  his  direction  of  the  common  affairs  of  his  two  kingdoms  by 
three  Ministries  and  an  Imperial  Court  of  Audit.  There  was  (1)  a 
Ministry  of  Foreign  Affairs  and  of  the  Imperial  Household,  which, 
besides  the  international  functions  indicated  by  its  name,  was 
charged  with  oversight  of  the  foreign  trade  and  shipping  inter- 
ests of  the  dual  kingdom.  (2)  The  Ministry  of  War,  by  which 
the  common  standing  army  of  the  two  kingdoms  was  administered. 
The  legislation  upon  which  the  maintenance  of  this  common 
standing  army  was  based  originated  with  the  legislatures  of  the 
two  kingdoms  acting  separately.  It  was,  that  is,  matter  of  agree- 
ment between  the  two  countries.  It  covered  such  points  as  the 
size  of  the  army,  liability  to  military  service,  rules  and  methods 
of  recruiting,  etc.,  and  was  embodied  in  identical  laws  adopted  by 
the  two  legislatures,  each  acting  for  itself  and  without  constitu- 
tional compulsion, 


498  THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY. 

As  commander-in-chief  of  the  army,  the  Emperor-King  had  the 
full  right  of  discipline,  full  power  to  appoint,  remove,  or  transfer 
officers  of  the  line,  and  the  determination  of  both  the  war  and 
peace  organizations  of  the  army,  quite  independently  of  any  action 
whatever  on  the  part  of  the  minister  of  war.  In  most  other  con- 
cerns of  the  military  administration,  however,  his  acts  require  the 
countersignature  of  the  minister.  The  militia,  or  reserve,  services 
of  the  two  kingdoms  were  separate,  and  separately  maintained ; 
but  in  war  the  militia  of  both  countries  became  supplementary  to 
the  regular  army. 

(3)  The  Ministry  of  Finance :  acting  under  the  Emperor,  the 
minister  of  finance  prepared  the  joint  budget,  apportioned  the  costs 
of  the  common  administration  between  Austria  and  Hungary,  saw 
to  the  raising  of  the  relative  quotas,  applied  the  common  income 
in  accordance  with  the  provisions  of  the  budget,  and  administered 
the  common  floating  debt. 

The  chief  sources  of  the  common  revenue  in  Austria-Hungary 
were  customs  duties  and  direct  contributions  from  the  treasuries 
of  the  two  states.  Certain  parts  of  the  customs  duties  were  as- 
signed to  the  common  treasury ;  and  such  expenses  as  these  were 
not  sufficient  to  meet  were  defrayed  by  the  contributions,  Austria 
paying  sixty-three  and  six  tenths  (63.6),  and  Hungary  thirty-six 
and  four  tenths  (36.4)  per  cent  of  the  sums  needed. 

The  Economic  E/elations  of  Austria  and  Hungary  were  regu- 
lated in  the  important  matters  of  commerce,  the  money  system, 
the  management  of  those  railroads  and  telegraph  lines  whose 
operation  affected  the  interests  of  both  kingdoms,  the  customs 
system,  and  the  indirect  taxation  of  industries  by  formal  agree- 
ments of  a  semi-international  character  entered  into  every  ten 
years,  and  brought  into  force  by  separate  but  of  course  identical 
laws  passed  in  the  national  legislatures  of  both  countries.  Each 
state  controlled  for  itself  the  collection  of  customs  duties  within 
its  own  territory ;  but  Austria-Hungary  was  regarded  as  forming 
only  a  single  customs  and  trade  territory,  and  the  laws  touching 
administration  in  these  fields  were  identical  in  the  two  countries. 

There  was  a  joint  stock  Austro-Hungarian  bank  at  Vienna; 
the  two  kingdoms  had  by  treaty  the  same  system  of  weights  and 
measures ;  and  there  was  separate  coining  but  the  same  coinage. 


THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY.  499 

Patents,  Posts,  and  Telegraphs.  —  A  common  system  of 
patents  and  copyrights  was  maintained ;  and  both  countries  had 
the  same  postal  and  telegraph  service. 

The  Delegations. — The  most  singular,  interesting,  and 
characteristic  feature  of  the  common  government  of  Austria-Hun- 
gary was  the  Delegations,  which  constituted,  in  germ  at  least,  a 
common  legislature.  There  were  two  Delegations,  an  Austrian 
and  a  Hungarian.  They  were  respectively  committees  of  the  Aus- 
trian and  Hungarian  legislatures.  Each  Delegation  consisted  of 
sixty  members,  twenty  of  whom  were  chosen  by  the  upper,  forty 
by  the  lower  chamber  of  the  legislature  which  they  represented. 
But,  although  thus  in  form  a  committee  of  the  legislature  which 
sent  it  forth,  each  Delegation  may  be  said  to  have  represented  the 
kingdom  from  which  it  came  rather  than  the  legislature  of  that 
kingdom.  It  was  not  subject  to  be  instructed,  but  acted  upon  its 
own  judgment  as  an  independent  body.  The  two  Delegations  sat 
and  acted  separately,  though  they  exercised  identical  functions. 
Each  passed  judgment  upon  the  budget  of  the  common  adminis- 
tration, each  was  at  liberty  to  take  action  upon  the  management 
of  the  common  debt,  each  superintended  the  common  administra- 
tion, and  could  freely  question  and  '  interpellate '  the  ministers, 
from  whom  each  heard  periodical  reports ;  and  each  had  the 
privilege  of  initiative  as  regards  all  measures  coming  within 
their  competence.  These  functions  were  concurrent,  not  joint. 
They  were,  nevertheless,  obviously  functions  which  must  under 
such  a  system  be  exercised  in  full  agreement :  the  common  ad- 
ministration could  not  serve  two  masters.  If,  therefore,  after  a 
triple  exchange  of  resolutions  no  agreement  was  reached  between 
the  two  bodies,  a  joint  session  was  held,  in  which,  without 
debate,  and  by  a  mere  absolute  majority  vote,  the  question  at 
issue  was  decided. 

As  a  matter  of  fact  the  legislative  powers  of  the  Delegations 
were  very  narrow  indeed.  Their  independent  action  was  con- 
fined for  the  most  part  to  the  granting  of  supplies  and  the  super- 
intendence of  the  administrative  action  of  the  three  common 
ministries.  The  very  supplies  they  granted  came  out  of  taxes 
voted  separately  by  the  parliaments  of  the  two  kingdoms ;  and 
almost  every  agency  they  used  rested  upon  treaties  and  identical 


500  THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY. 

laws  independently  passed.  The  term  for  which  the  Delegations 
were  elected  was  one  year.  They  were  called  together  by  the 
monarch  annually,  one  year  at  Vienna,  the  next  at  Buda-Pest. 
In  the  selection  of  members  of  the  Delegation  the  Austrian  crown 
lands  (the  provinces  once  separate  or  independent)  were  entitled 
to  representation,  as  was  also  Croatia-Slavonia  on  the  Hungarian 
side.  When  the  two  Delegations  met  in  joint  session,  the 
number  of  members  present  from  each  must  be  equal  to  the 
number  of  those  present  from  the  other,  any  numerical  inequality 
being  corrected  by  lot. 

Citizenship.  —  There  was  no  common  citizenship  for  the 
two  kingdoms;  but  in  all  business  relationships  the  citizens  of 
each  state  were  regarded  as  citizens  of  the  other. 

The  Government  of  Austria:  the  Executive.  —  The  gov- 
erning power  rested  in  Austria  with  the  Emperor.  The  recent 
Emperors  by  no  means  ventured  upon  the  centralization  of 
authority  attempted  and  in  part  effected  by  Maria  Theresa  and 
Joseph  II.;  but  Austrian  constitutional  law  did  not  assign  duties 
to  the  head  of  the  state :  it  assigned  functions  to  the  ministers 
and  granted  privileges  to  the  representative  bodies.  All  powers 
not  explicitly  so  conferred  remained  with  the  Emperor.  He 
directed  all  the  administrative  activities  of  the  state ;  he  ap- 
pointed the  life  members  of  the  upper  house  of  the  Reichsmt;  and, 
through  his  ministers,  he  in  large  measure  controlled  legislation. 
But  he  must  act  in  administration  through  the  ministers  and  in 
legislation  through  the  parliament.  The  countersignatures  of  the 
ministers  were,  by  statute,  made  necessary  for  the  validity  of  his 
decrees  ;  and  the  consent  of  the  Reichsrat  was  indispensable  to  the 
determination  of  the  policy  and  content  of  all  legislation.  The 
only  judicial  prerogative  that  remained  with  him  was  the  power  of 
pardon.  On  all  sides  his  power  was  circumscribed  by  the  legally 
necessary  cooperation  of  other  regularly  constituted  authorities. 

The  Ministry,  which  consisted  of  a  Minister-President  and 
seven  heads  of  departments,  acted  as  the  Emperor's  council,  but 
it  did  not  constitute  a  board  whose  majority  vote  decided  admin- 
istrative questions.  Action  was  taken,  rather,  in  each  department 
upon  the  individual  responsibility  of  the  minister  at  its  head. 
The  ministers  had  a  threefold  office :  they  were  the  Emperor's 


THE  GOVERNMENTS   OF   AUSTRIA-HUNGARY.  501 

councillors,  they  executed  his  commands,  and  they  were  the  re- 
sponsible administrators  of  special  branches  of  the  public  service. 
They  acted  for  the  Emperor  also  in  introducing  measures  in  the 
Reichsrat.  They  must  attend  both  Houses  to  defend  the  policy 
of  the  executive  and  to  answer  'interpellations.'  There  were 
eight  executive  departments  :  Interior,  National  Defence,  Keligion 
and  Education,  Trade,  Agriculture,  Finance,  Justice,  and  Rail- 
ways. The  Minister-President  often  held  no  portfolio,  and  con- 
stituted a  ninth  minister. 

Legislation  :  the  National  and  Provincial  Legislatures.  — 
In  all  legislation  of  whatever  kind  the  cooperation  of  the  repre- 
sentatives of  the  people  was  necessary ;  but  not  all  of  this  cooper- 
ative privilege  belonged  to  the  Reichsrat,  the  national  legislative 
body.  Cooperation  in  the  greater  matters  of  legislation  was  ex- 
pressly given  by  law  to  the  Reichsrat,  but  all  legislative  powers 
not  expressly  granted  to  it  belonged  to  the  sphere  of  the  Land- 
tags of  the  seventeen  provinces  (kingdoms,  grand-duchies,  arch- 
duchies, duchies,  and  counties),  of  which  the  conglomerate  realm 
was  made  up. 

The  Reichsrat.  —  The  Reichsrat  consisted  of  a  House  of 
Lords  (Herrenhaus)  and  a  House  of  Representatives  (Abgeord- 
netenhaus).  To  the  House  of  Lords  came  princes  of  the  blood 
royal  who  had  reached  their  majority,  the  archbishops  and  cer- 
tain bishops,  nobles  of  high  rank  who  had  acquired  hereditary 
seats  in  the  chamber,  and  such  life  members  as  the  Emperor 
chose  to  appoint  in  recognition  of  special  services  to  the  state, 
to  the  church,  to  science,  or  to  art.  To  the  other  House  came 
representatives  chosen  by  general,  equal,  and  direct  manhood 
suffrage.1  The  term  of  the  lower  house  was  six  years.  The 
number  of  members  in  the  House  of  Representatives  by  the  law 
of  1907  was  516.  Representation  was  apportioned  among  the 
several  lands  which  form  the  Austrian  domain. 

The  assent  of  the  chambers  was  required  not  only  in  legis- 
lation but  also  for  the  validity  of  treaties  which  affected  the  trade 
of  the  country,  which  laid  economic  burdens  upon  the  state,  which 
affected  its  legal  constitution,  or  which  concerned  an  alienation  or 
extension  of  territory.  The  powers  of  the  two  Houses  were  the 

i  Law  of  1907. 


502  THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY. 

same,  except  that  financial  measures  and  bills  which  affected  re- 
cruitment for  the  army  must  originate  in  the  House  of  Repre- 
sentatives. It  was  the  general  rule  that  the  assent  of  both  Houses 
was  necessary  to  every  resolution  or  action  of  the  Eeichsrat;  but 
an  interesting  exception  is  to  be  noted.  If  a  disagreement  arose 
between  the  chambers  upon  a  question  of  finance  or  of  military 
recruitment,  the  lowest  figures  or  numbers  were  to  be  considered 
adopted. 

The  Emperor  named  not  only  the  life  members  but  also  the 
president  and  vice-president  of  the  House  of  Lords.  He  called 
and  opened  the  sessions  of  the  Reichsrat,  and  might  close,  ad- 
journ, or  dissolve  it.  It  was  within  the  prerogative  of  the  Em- 
peror, acting  with  the  advice  of  his  ministers,  to  enact  any  laws 
which  seemed  to  be  immediately  necessary  during  a  recess  of  the 
Reichsrat)  provided  they  were  not  financial  laws,  or  laws  which 
in  any  way  permanently  encumbered  the  state.  But  such  laws 
must  be  submitted  to  the  Eeichsrat  within  four  weeks  after  its 
next  assembling  (going  first  to  the  House  of  Representatives), 
and  altogether  lapsed  unless  submitted  to  the  Reichsrat  within 
that  time,  and  sanctioned  by  it. 

Ministerial  Responsibility.  —  In  theory,  the  ministers  were 
responsible  to  the  Houses,  and  resigned  if  defeated ;  but  the 
theory  found  no  realization  in  practice.  Race  lines  determined 
party  lines  in  the  Houses,  and  even  members  of  the  same  race  did 
not  keep  steadily  together  in  purpose  or  policy ;  so  that  there 
were  no  governing  parties,  and  no  majorities  that  could  be  reck- 
oned beforehand.  The  Emperor  might  placate  now  this  group, 
and  again  the  other,  and  so  keep  his  own  ministers  and  pursue 
his  own  policy. 

The  Landtags.  —  The  greater  political  divisions  of  Austria 
retained  their  own  Landtags,  or  local  legislatures,  and  to  these  be- 
longed considerable  legislative  powers.  The  Emperor  named 
the  chairmen  of  the  Landtags  and  their  substitutes ;  he  called, 
opened,  and  might  close,  adjourn,  or  dissolve  the  Landtags;  and 
his  assent  was  necessary  to  all  their  acts.  But  their  consent  was 
necessary  to  almost  all  laws  which  affected  the  provinces  which 
they  represented,  and  their  privileges  constituted  an  important 
part  of  the  total  of  legislative  power  which  rested  with  the  repre- 


THE   GOVERNMENTS   OF    AUSTKIA-HUNGAKY.  503 

sentatives  of  the  people.     The  provinces  had  also  extensive  rights 
of  self-administration. 

Local  Government.  —  The  Landtags  were  the  most  con- 
spicuous organs  of  self-government.  Each  Landtag  consisted  of 
a  single  chamber  and  represented  the  same  classes  of  voters  that 
sent  members  to  the  national  Reichsrat  (page  501),  —  with  the  ad- 
dition of  another,  an  official  class.  The  administrative  organ  of 
the  province  was  a  provincial  committee,  as  in  France.  The  cen- 
tral government  was  represented  in  the  exercise  of  its  many  local 
powers  by  a  Statthalter  or  Landesprdsident,  whose  powers  were 
very  extensive.  Within  the  province  there  were,  in  some  parts 
of  the  country,  districts  or  circles,  which  were  areas  of  financial 
administration ;  and  throughout  the  country  the  smallest  areas 
of  local  government  were  the  Communes,  local  bodies  which,  act- 
ing within  the  commission  of  general  statutes,  exercised  con- 
siderable powers  of  self-direction  through  a  communal  committee 
and  a  communal  president  chosen,  together  with  a  certain  num- 
ber of  assistants,  by  the  committee.  The  Communes  were  organs 
of  the  provinces,  and  their  presidents  to  a  certain  extent  served 
the  general  state  administration. 

The  Government  of  Hungary  :  the  Executive.  —  The  king 
bore  substantially  the  same  relations  to  the  other  powers  of  the 
state  in  Hungary  that  he  bore  in  Austria.  The  directing  head 
of  the  state,  he  yet  must  act  in  all  administrative  matters  through 
the  ministers,  and  in  all  legislative  matters  through  the  national 
chamber.  Even  his  treaty-making  power  was  limited  as  regards 
Hungary  in  the  same  way  that  it  was  limited  as  regards  Austria 
(page  502). 

The  Hungarian  Ministry  consisted  of  a  Minister-President  and, 
if  he  held  no  portfolio,  of  nine  other  ministers  :  a  minister  attend- 
ant upon  the  king,  a  minister  of  the  Interior,  a  minister  of  Finance, 
a  minister  of  Industry  and  Commerce,  a  minister  of  Agriculture, 
a  minister  of  Justice,  a  minister  of  Religion  and  Education,  a 
minister  of  National  Defence,  and  a  special  minister  for  Croatia- 
Slavonia. 

The  ministers  attended  the  sittings  of  the  chambers  and  played 
there  the  same  part  that  the  Austrian  ministers  played  in  the 
Reichsrat  (page  501).  The  Hungarian  ministers  were,  however, 


504  THE    GOVERNMENTS    OF    AUSTRIA-HUNGARY. 

subject  to  a  real  responsibility  to  the  parliament  of  the  kingdom. 
The  Magyars  maintained  a  veritable  majority  in  the  Hungarian 
Houses,  and  they  knew  their  own  minds  and  the  right  methods 
of  party  discipline,  besides.  They  have  been  statesmen  and 
rulers  time  out  of  mind,  and  the  king's  ministers  in  Hungary 
obeyed  and  represented  the  majority  in  parliament,  resigning  as 
of  course  when  defeated. 

The  Diet.  —  The  Diet  (Orszdggyule's),  the  national  repre- 
sentative body,  consisted  of  a  Table  of  Magnates  and  a  Table  of 
Eepresentatives.  To  the  former  went  all  hereditary  peers  who  paid 
an  annual  land  tax  of  three  thousand  florins,  the  highest  officials 
of  the  E/oman  Catholic  and  Greek  churches,  certain  ecclesiastical 
and  lay  representatives  of  the  Protestant  churches,  eighty-four 
life  peers  appointed  by  the  king,  certain  members  ex  ojficio,  three 
delegates  from  Croatia-Slavonia,  and  those  royal  archdukes  who 
had  reached  their  majority  and  who  owned  landed  estates  in  Hun- 
gary. The  Table  of  Representatives  consisted  of  four  hundred 
and  fifty-three  members  elected  by  direct  vote  for  a  term  of  five 
years.  The  membership  of  the  House  for  ordinary  business, 
however,  was  only  four  hundred  and  thirteen.  The  forty  addi- 
tional members  represented  Croatia-Slavonia ;  and,  inasmuch  as 
that  great  province  had  an  almost  independent  legislature  of  its 
own,  its  members  in  the  national  House  voted  only  upon  ques- 
tions of  national  action  which  affected  their  own  province.  These 
subjects  were  understood  to  be,  the  army,  trade,  and  finance.  As 
must  always  happen  where  there  is  real  ministerial  responsi- 
bility, the  lower  House  was  the  governing  House.  The  Magnates 
yielded,  in  the  long  run,  every  point  upon  which  the  purpose  of 
the  Representatives  was  definitely  fixed. 

The  franchise  rested  upon  the  payment  of  a  small  amount  of 
taxes  on  land  or  on  income.  Members  of  certain  learned  and 
professional  classes,  however,  possessed  the  franchise  without 
any  property  qualification. 

The  president  and  vice-president  of  the  upper  House  were 
nominated  by  the  king.  As  in  the  case  of  the  Austrian  repre- 
sentative bodies,  so  also  in  the  case  of  the  Hungarian,  the  king 
convened  and  opened,  and  might  close,  adjourn,  or  dissolve 
them. 


THK    <;<>\  FJtNMENTS   OF   AUSTRIA-HUNGARY.  505 

Local  Government.  —  For  purposes  of  local  government 
Hungary  was  divided  into  shires,  self-administered  cities,  and 
Communes.  The  organization  was  throughout  substantially  the 
same.  In  each  area,  —  the  Commune  excepted,  —  there  was  a 
president  who  represented  the  central  government ;  in  each,  with- 
out exception,  there  was  an  administrative  committee  which  was 
the  executive  representative  of  the  local  body  and  an  assembly, 
in  part  representative  and  in  part  primary  (inasmuch  as  those 
who  are  most  highly  taxed  are  entitled  to  be  present),  with  which 
rested  the  general  direction  of  affairs. 

Croatia-Slavonia.  —  There  was  not  in  Hungary  the  pro- 
vincial organization  which  existed  in  Austria.  Croatia-Slavonia 
was  the  only  constituent  part  of  the  Hungarian  lands  which  had 
its  own  separate  Landtag.  The  organization  of  this  territory 
was  in  all  respects  exceptional.  It  was  given  legal  rights  which 
could  not  be  taken  away  from  it  without  its  own  consent ;  and  it 
had  a  distinct  administration  responsible  to  the  king  and  to  its 
own  Landtag.  It  was,  nevertheless,  an  integral  part  of  the  Hun- 
garian monarchy. 

Revolution  and  the  Breaking  Up  of  the  Austro-Hnngarian 
Empire.1  —  The  war  has  brought  the  long-anticipated  dissolution 
of  the  power  of  the  Habsburgs  and  the  proclamation  of  a  number 
of  independent  republican  states.  The  Emperor  Charles  II.  has 
abdicated  and  the  Union  of  Austria  and  Hungary  has  been  dis- 
solved. Hungary  has  been  proclaimed  a  republic  and  will  doubt- 
less be  greatly  reduced  in  size  through  the  loss  ,of  territories  that 
will  become  independent  or  that  will  join  with  Rumania  and  Serbia. 
The  Czecho-Slovaks  in  Bohemia  and  Slavonia  have  proclaimed 
themselves  independent  and  are  establishing  a  republic,  as  have 
the  Jugo-Slavs  in  the  South.  The  fate  of  the  German  Austrians 
is  not  yet  determined.  The  Austrian  Poles  will  doubtless  join 
in  the  new  Republic  of  Poland  ;  Transylvania  will  probably  unite 
with  Rumania,  since  they  are  of  the  same  nationality.  The  Croats 
and  Serbians  in  Bosnia  and  Herzegovina  have  proposed  a  union 
with  Serbia,  and  Italia  Irredenta  will  return  to  Italy. 

Whatever  the  exact  territorial  arrangements  may  be,  the  Aus- 
trian and  the  Hungarian  power  over  the  subject  races  in  the 

i  Written  December  1,  1918. 


506  THE   GOVERNMENTS   OF   AUSTRIA-HUNGARY. 

Empire  has  been  broken,  and  out  of  the  disruption  of  the  Empire 
will  come  a  number  of  small,  national  states  in  which  the  national 
aspirations  for  independence  will  be  realized. 


SOME  REPRESENTATIVE  AUTHORITIES. 

On  Austria-Hungary : 

Andrassy,  J.,  Development  of  Hungarian  Constitutional  Liberty,  Lon- 
don, 1908. 

Arnold-Foster,  F.,  Francis  De"ak,  A  Memoir,  London,  1880. 

Borgeaud,  Charles,  The  Adoption  and  Amendment  of  Constitutions  in 
Europe  and  America.  Translated  by  C.  D.  Hazen  and  J.  M.  Vincent. 
KY.  and  London,  1895. 

Demonibynes,  G.,  Les  Constitutions  Europeennes,  II.,  pp.  167-304,  2  vols., 
Paris,  1883. 

Dickinson,  Reginald,  Summary  of  the  Constitution  and  Procedure  of 
Foreign  Parliaments,  2d  ed.,  8vo,  London,  1890. 

Dodd,  W.  F.,  Modern  Constitutions,  2  vols.,  Chicago,  1909. 

Gumplowicz,  Das  Oesterreichische  Staatsrecht,  3d  ed.,  Vienna,  1907. 

Knatchbull-Hugessen,  C.  M.,  The  Political  Evolution  of  the  Hungarian  Na- 
tion, London,  1908. 

Leger,  Louis,  A  History  of  Austro-Hungary  from  the  Earliest  Time  to 
the  Year  1889.  Translated  by  Mrs.  Birkbeck  Hill  London,  1889. 

Levy,  D.,  L'Autriche-Hongrie,  ses  Institutions,  etc.,  Paris,  1872. 

Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe,  Vol.  II., 
Chaps.  VIII.-X.,  2  vols.,  Boston,  1896. 

Ogg,  F.  A.,  The  Governments  of  Europe,  N.Y.,  1913. 

Patterson,  Arthur  J.,  The  Magyars :  Their  Country  and  Its  Institutions, 
2  vols.,  8vo,  London,  1870. 

Ullrich,  J.,  Das  Staatsrecht  der  oesterreichisch-ungarischen  Monarchic, 
in  Marquardsen's  Handbuch  des  oeffentlichen  Rechts  der  Gegenwart, 
Freiburg  im  B.,  1884. 

Von  Ferdinandy,  G.,  Staats  und  Verwaltungsrecht  des  Konigreichs  Un- 
garn,  Hanover,  1909. 

Vdmbery,  Arminius,  and  Heilprin,  Louis,  Hungary  (Stories  of  the  Nations 
Series),  N.Y.  and  London,  1886. 

Whitman,  C.  S.,  The  Realms  of  the  Hapsburgs,  London  and  N.Y.,  1893. 

Worms,  Baron  H.  de,  The  Austro-Hungarian  Empire,  8vo,  London, 
1877.  Historical  and  descriptive. 

Zuylen  de  Nyevelt,  Baroness,  Austria:  Its  Society;  Politics,  and  Re- 
ligion, National  Review,  October,  1891. 


XV. 
THE   GOVERNMENT   OF   SERBIA 


THE  struggle  for  Serbian  independence  began  in  1804  and  con- 
tinued until  by  the  Treaty  of  Adrianople  in  1829  the  pachalik  of 
Belgrade  was  erected  into  an  autonomous  and  tributary  princi- 
pality under  the  suzerainty  of  Turkey  and  the  protection  of 
Russia.  Miloch  Obrenovitch  was  proclaimed  hereditary  prince 
by  the  national  Skupshtina  and  was  recognized  as  such  by  the 
Porte  in  1830.  Under  him  a  constitution  was  prepared  and  after 
approval  by  the  Grand  Skupshtina  was  promulgated  in  1835.  It 
created  a  Council  of  State  charged  with  the  duty  of  preparing 
the  laws,  but  as  it  met  for  only  two  days  a  year  it  could  not  per- 
form its  function  and  became  merely  a  chamber  for  enrolling  the 
laws.  This  constitution  was  of  short  duration  and  was  succeeded 
by  another,  called  the  Oustav,  or  Statute,  which  went  into  effect 
in  1839.  For  twenty  years  the  Statute  was  the  fundamental  law 
of  the  principality.  By  the  Treaty  of  Paris  in  1856,  the  Russian 
protectorate  of  the  principality  was  abolished,  and  Serbia  was 
recognized  as  a  semi-independent  state.  In  1861  the  functions 
of  the  Skupshtina  were  by  law  determined  in  some  detail  and  a 
distinction  made  between  the  ordinary  Skupshtina  and  the  Grand 
Skupshtina  which  had  no  stated  meetings.  The  Skupshtina  was 
a  sort  of  popular  assembly,  whose  origin  lay  in  very  remote  time. 

In  1878,  by  the  Treaty  of  Berlin,  the  complete  independence 
of  the  principality  was  recognized,  and  in  1882  the  national 
Skupshtina  proclaimed  the  principality  a  kingdom  and  Prince 
Milan  Obrenovitch  IV  took  the  title  of  Milan  I,  King  of  Serbia. 

In  1869,  following  the  assassination  of  Prince  Michel,  the 
Grand  Skupshtina  had,  through  a  committee,  prepared  and  pro- 

507 


508  THE   GOVERNMENT    OP   SERBIA. 

claimed  a  constitution.  This  lasted  until  1888  when  King  Milan 
yielded  to  the  oft-repeated  demands  for  a  revision,  and  appointed 
a  committee  of  seventy,  composed  of  members  of  the  different 
parties.  The  work  of  the  committee  was  ratified  by  a  Grand 
Skupshtina  and  the  new  constitution  was  promulgated  in  Febru- 
ary, 1889.  Its  existence  was  brief,  for  it  was  suspended  by  a 
royal  proclamation  in  May,  1894,  and  the  constitution  of  1869 
was  again  put  into  effect.  Seven  years  later  this  constitution 
was  again  repealed  and  a  new  one  was  proclaimed  in  April,  1901. 

The  constitution  of  1901  was  elaborated  in  conjunction  with 
the  leaders  of  the  radical  and  progressive  parties  and  contained 
an  innovation  in  the  form  of  a  senate.  Following  the  assassina- 
tion of  King  Alexander  and  Queen  Draga  in  1903,  the  Skupihtina 
revived  the  constitution  of  1888  and  proclaimed  Peter  Kara- 
georgevitch  king,  with  the  title  of  Peter  I. 

According  to  the  constitution  the  kingdom  is  an  hereditary 
and  constitutional  monarchy  combined  with  representation  of  the 
people.  The  state  religion  is  that  of  the  Orthodox  Greek  Church. 

For  purposes  of  administration  the  kingdom  is  divided  into 
departments  (okroug),  the  departments  into  arrondissements 
(srez),  and  the  arrondissements  into  communes  (opchtina). 

The  constitution  contains  a  statement  of  the  rights  of  citizens : 
all  are  equal  before  the  law  and  no  titles  of  nobility  can  be 
granted  or  recognized ;  individual  liberty  is  guaranteed  and  no 
one  can  be  tried  except  by  a  competent  tribunal ;  private  domi- 
cile and  private  property  are  inviolable ;  freedom  of  conscience 
is  absolute  and  instruction  is  free  in  so  far  as  it  is  not  contrary 
to  public  order  and  morality ;  primary  instruction  is  obligatory 
and  free  in  the  public  schools  ;  liberty  of  speech  and  of  the  press, 
freedom  of  assembly  and  of  association,  and  the  right  of  petition 
are  guaranteed. 

The  King.  —  The  executive  power  is  vested  in  the  King 
and  is  exercised  through  responsible  ministers  who  are  appointed 
and  dismissed  by  the  King.  He  is  the  head  of  the  state  and  his 
person  is  inviolable  ;  he  cannot  be  held  responsible ;  he  sanctions 
and  promulgates  the  laws ;  he  appoints  the  officers  of  the  state 
and  they  exercise  their  authority  in  his  name  and  under  his  super- 
vision ;  he  is  commander-in-chief  of  the  army ;  he  conducts  the 


THE   GOVERNMENT   9F   SERBIA.  509 

foreign  affairs  of  the  state,  declares  war,  makes  treaties  of  peace, 
of  alliance,  and  of  all  other  sorts  and  communicates  them  to  the 
Skupshtina  as  soon  as  national  interests  permit ;  treaties  of  com- 
merce and  those  which  require  the  expenditure  of  money  or  a 
modification  of  the  laws  or  which  affect  the  rights  of  citizens 
must  be  approved  by  the  Skupshtina  before  they  become  binding ; 
he  convokes  the  Skupshtina  in  ordinary  or  extraordinary  sessions  ; 
he  opens  and  closes  its  sessions ;  he  may  prorogue  it,  but  not  for 
a  longer  period  than  two  months  and  not  oftener  than  once  in 
the  same  session  without  its  consent ;  he  may  dissolve  it,  but 
new  elections  must  be  held  within  two  months  and  the  new 
assembly  must  meet  within  three  months.  The  decree  of  disso- 
lution must  be  countersigned  by  all  the  ministers. 

No  act  of  the  King  touching  state  affairs  is  valid  unless 
countersigned  by  a  competent  minister  who  thereby  assumes 
the  responsibility.  In  case  the  throne  becomes  vacant,  the  Grand 
Skupshtina  shall  determine  the  question  of  a  successor. 

The  Skupshtina.  —  The  national  Skupshtina,  which  repre- 
sents the  country,  is  ordinary  (obitchna)  or  grand  (velikd)  ;  it  is 
composed  of  deputies  freely  chosen  by  the  people  in  accordance 
with  the  provisions  of  the  constitution.  The  election  is  direct 
and  voting  is  secret  and  by  ballot.  There  are  one  hundred  and 
sixty-six  deputies,  chosen  by  districts ;  the  electors  comprise  all 
Serbian  citizens  twenty-one  years  of  age  and  over  who  pay  an 
annual  direct  tax  to  the  state  of  five  dollars. 

No  one  can  be  elected  who  is  not  qualified  to  vote,  and  in 
addition  he  must,  if  a  naturalized  citizen,  have  been  a  resident 
for  five  years,  and  must  be  at  least  thirty  years  of  age,  enjoy  full 
political  and  civil  rights,  be  a  permanent  resident  and  pay  at 
least  six  dollars  direct  tax  a  year.  Deputies  who  enter  the 
service  of  the  state,  except  ministers,  lose  their  membership  but 
may  stand  for  reelection.  The  term  is  four  years  and  there  is 
an  annual  session  which  cannot  end  until  the  Budget  is  passed ; 
its  sessions  are  public  unless  a  secret  session  is  demanded  by  the 
president  or  ten  members,  in  which  case  the  Skupshtina  decides. 
All  proposed  laws,  except  those  relating  to  the  Budget,  must 
first  be  considered  by  the  Council  of  State,  and  all  bills  must  be 
referred  to  a  committee  and  cannot  be  considered  unless  favorably 


510  THE   GOVERNMENT    OF    SERBIA. 

* 

reported  by  the  committee.  Every  deputy  has  the  right  to 
address  questions  and  interpellations  to  ministers,  who  must 
answer  before  the  close  of  the  session. 

The  Grand  Skupshtina  is  composed  of  twice  as  many  members 
as  the  ordinary  Skupshtina  and  is  summoned  when  it  is  necessary 
to  decide  the  succession  to  the  throne,  to  appoint  a  Council  of 
Regency,  to  decide  upon  amendments  to  the  Constitution,  to  de- 
termine upon  the  alienation  or  exchange  of  national  territory, 
and  when  the  King  deems  it  necessary  to  consult  it. 

Ministers.  —  The  ministers  are  the  heads  of  the  executive 
departments,  except  the  president  of  the  council  of  ministers, 
who  may  be  without  portfolio.  They  are  appointed  and  dis- 
missed by  the  King.  They  have  the  right  of  free  access  to  the 
Skupshtina,  but  may  not  vote  unless  they  are  members ;  the 
Skupshtina  may  demand  their  presence  at  its  sittings.  They 
are  responsible  to  the  King  and  to  the  Skupshtina  for  all  official 
acts  ;  and  may  be  tried  by  a  special  court  composed  of  members 
of  the  Council  of  State  and  the  Court  of  Cassation. 

Council  of  State.  —  The  Council  of  State  is  composed  of  six- 
teen members,  eight  of  whom  are  appointed  by  the  King  and  eight 
by  the  Skupshtina;  the  King  sends  to  the  Skupshtina  a  list  of  six- 
teen names  from  which  the  Skupshtina  chooses  eight  and  it  in 
turn  sends  a  similar  list  to  the  King  from  which  he  chooses  eight. 
They  are  appointed  for  life.  The  chief  functions  of  the  Council 
are  to  draft,  at  the  invitation  of  the  government,  proposals  for 
laws,  to  give  its  advice  upon  questions  submitted  by  the  gov- 
ernment, and  to  examine  all  proposals  for  laws  introduced  by 
the  government  or  initiated  by  the  Skupshtina,  and  no  discussion 
of  any  proposed  law  may  take  place  until  the  Council  has  given 
its  opinion.  The  Council  may  appoint  one  or  more  of  its 
members  to  defend  its  report  before  the  Skupshtina. 

The  Courts. — The  courts  are  declared  independent  and  it 
is  forbidden  to  the  executive  or  to  the  legislative  departments  to 
interfere  in  judicial  matters.  No  special  tribunals  or  commissions 
to  exercise  judicial  functions  may  be  created. 

There  is  a  Court  of  Cassation  for  the  whole  country  which  de- 
termines solely  questions  of  law ;  it  also  has  jurisdiction  in  cases 
of  Conflict  between  the  judicial  and  the  administrative  authorities. 


THE   GOVERNMENT   OF   SERBIA.  511 

Below  the  Court  of  Cassation  are  courts  of  appeal  and  courts  of 
first  instance. 

Judges  are  appointed  by  the  King ;  they  are  not  liable  to  re- 
moval except  by  a  judgment  of  a  regular  tribunal  or  by  the  Court 
of  Cassation  for  a  disciplinary  offence,  nor  can  they  be  transferred 
without  their  consent. 

Amendment  of  the  Constitution.  —  The  proposal  for  an 
amendment,  revision,  or  interpretation  of  the  Constitution  may 
originate  with*  the  King  or  with  the  Skupshtina;  if  with  the  King 
it  shall  be  communicated  t<p  the  Skupshtina  which  shall  at  once  be 
dissolved  and  the  Grand  Skupshtina  summoned  within  four 
months ;  if  the  proposal  originates  with  the  Skupshtina,  it  must  be 
passed  by  that  body  by  an  absolute  majority  of  the  deputies  twice 
at  an  interval  of  ten  days  ;  thereupon  the  Skupshtina  is  dissolved 
and  the  Grand  Skupshtina  must  be  summoned  within  four  months. 

The  decision  in  each  case  by  the  Grand  Skupshtina  shall  be  by 
an  absolute  majority  of  the  members,  and  its  decisions,  when 
sanctioned  by  the  King,  become  binding. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Church,  L.  F.,  Story  of  Serbia,  London,  1914. 

Crawford,  H.,  The  Balkan  Cockpit,  London,  1915. 

Ci-ijic,  J.,  Questions  Balkanesques,  Paris,  1916. 

Dareste,  F.  R.,  Les  Constitutions  Modernes,  3d  ed.,  Paris,  1910. 

Demombynes,  G.,  Constitutions  Europeennes,  2d  ed.,  Paris,  1883. 

Peritch,  J.,  La  Xouvelle  Constitution  au  royaume  de  Serbie,  Paris,  1903- 

1904. 

Petrovitch,  V.  M..  Serbia;  Her  History  and  Her  Customs,  London,  1905. 
Sentupery,  L.,  L'Europe  Politique,  3d  ed.,  Paris,  1895. 
Temperly,  H.  W.  V.,  A  History  of  Serbia,  London,  1907. 
Ubicini,  Constitution  (de  1869)  de  la  principaute  de  Serbie,  Paris,  1871. 


XVI. 
THE   GOVERNMENT   OF   RUMANIA. 


BY  the  treaty  of  Adrianople  of  September  14,  1829,  Moldavia 
and  Wallachia  acquired  the  title  of  Principalities  and  became 
vassal  territories  of  Turkey.  With  the  cessation  of  the  military 
occupation  in  1834,  two  organic  laws,  prepared  under  the  influence 
of  Russia,  were  put  into  effect  and  served  for  twenty-seven  years 
as  the  bases  of  the  organization  of  the  Principalities,  which  during 
that  period  were  under  the  protection  of  Russia.  By  the  Treaty 
of  Paris  of  1856,  the  Russian  pretectorate  was  abolished  and  the 
Principalities  were  recognized  as  semi-independent  states,  each 
with  its  separate  Prince ;  but  in  1859  -  Colonel  Cuza  was  elected 
1  Hospodar,'  or  Lord,  by  each  and  took  the  title  of  Prince  Alexander- 
Joan  I.  The  union  of  the  Principalities  under  the  name  of  Ru- 
mania was  formally  proclaimed  at  Bucharest  and  at  Jassy  on 
December  23,  1861. 

In  July,  1864,  a  statute  was  promulgated  by  which  a  Senate  and 
a  Council  of  State  was  created  and  in  1866  as  a  result  of  a  revo- 
lution Prince  Alexander-Joan  abdicated  ;  a  few  months  afterward 
Prince  Charles  of  Hohenzollern-Sigmaringen  was  called  to  the 
throne  by  popular  vote  and  took  the  name  of  Charles  I.  The 
Sultan  confirmed  this  choice  and  conferred  on  him  the  title  of  the 
hereditary  prince.  Charles  summoned  a  constituent  assembly  for  the 
purpose  of  framing  a  constitution  which  on  June  30, 1866,  was  pro- 
claimed, and,  with  modifications,  is  the  constitution  in  force  to-day. 

As  a  result  of  the  Russo-Turkish  war  of  1877,  Rumania  was 
recognized  as  an  independent  state  by  the  Treaty  of  Berlin  in  1878, 
but  upon  condition  of  a  modification  in  the  constitution  which 
should  remove  all  distinctions  and  incapacities  arising  out  of  re- 
ligious beliefs.  In  1881  Rumania  became  a  kingdom  and  its 
Prince  took  the  title  of  King. 

512 


THE   GOVERNMENT   OF   RUMANIA.  513 

Constitution.  —  The  constitution  of  1866,  as  amended  in 
1879  and  1884,  is  divided  into  eight  titles  dealing  with  the  territory, 
the  rights  of  Kumanians,  the  powers  of  the  state,  finances,  the 
army,  general  provisions,  amendment,  and  temporary  and  sup- 
plemental provisions. 

Rights  of  Rumanians.  —  The  declaration  of  the  rights  of 
Rumanians  contains  the  usual  provisions  upon  liberty  of  conscience, 
of  speech,  of  the  press,  of  meeting  and  upon  individual  freedom, 
protection  from  arbitrary  arrest  and  prosecution  except  as  pro- 
vided by  law,  inviolability  of  residence  and  property,  and  the  right 
of  peaceable  assembly  and  of  association.  In  a  number  of  respects 
the  exercise  of  these  rights  is  subject  to  the  provisions  of  law. 

The  Powers  of  the  State.  —  All  power  emanates  from  the 
people  and  can  be  exercised  only  by  delegation  and  in  the  manner 
prescribed  in  the  constitution.  The  legislative  power  is  exercised 
by  the  King  and  the  national  assembly,  which  is  composed  of  two 
houses.  The  King  and  each  house  is  a  separate  part  of  the  legis- 
lative power  and  each  can  initiate  legislation.  The  interpretation 
of  the  law  belongs  solely  to  the  legislative  power.  The  executive 
power  is  in  the  hands  of  the  King,  and  the  judicial,  of  the  courts. 

National  Assembly.  —  The  national  assembly  is  composed 
of  two  houses,  the  members  of  which  represent  the  nation  and  not 
merely  the  district  from  which  they  are  chosen.  Members  of 
either  house,  except  ministers  who  accept  a  salaried  post  from  the 
government,  cease  to  be  members  but  may  again  become  members 
by  a  new  election.  The  houses  enjoy  the  ordinary  rights  and 
privileges  of  constitutional  assemblies. 

Chamber  of  Deputies.  —  The  chamber  is  composed  of  183 
members,  chosen  for  a  term  of  four  years.  Members  must  be 
twenty-five  years  of  age,  Rumanian  citizens  enjoying  full  civil 
and  political  rights  and  domiciled  in  the  country.  The  electors 
are  all  male  citizens  of  full  age  who  pay  taxes.  The  electors  in 
each  district  are  divided  into  three  colleges ;  the  first  comprises 
all  owners  of  property  producing  an  income  of  at  least  two  hun- 
dred and  fifty  dollars,  the  second  those  domiciled  and  resident  in 
urban  (Communes  and  paying  direct  taxes  to  the  state  of  at  least 
four  dollars  a  year,  and  those  who  exercise  the  liberal  professions, 
ollic.ers,  state  pensioners  and  those  who  have  been  through  the 


514  THE   GOVERNMENT    OF    RUMANIA. 

primary  course ;  the  third,  all  others  who  pay  taxes.  Within 
this  last  college  those  who  can  read  and  write  and  have  an 
income  of  at  least  sixty  dollars  from  rural  land,  priests,  and 
village  schoolmasters  vote  directly ;  all  the  rest  vote  indirectly. 
Every  fifty  indirect  electors  choose  a  delegate  and  the  delegates 
vote  with  the  direct  electors  of  the  colleges.  The  first  college  elects 
seventy-five  deputies,  the  second  seventy,  and  the  third  thirty-eight. 
The  Senate.  —  The  Senate  is  composed  of  one  hundred  and 
twenty  members,  of  whom  two  represent  the  universities,  eight 
are  high  ecclesiastical  dignitaries,  and  one  hundred  and  ten  are 
elected.  The  electors  in  each  district  are  divided  into  two  col- 
leges ;  in  the  first  are  all  electors  having  property  yielding  an 
annual  income  of  at  least  $400,  and  in  the  second  those  having 
property  yielding  from  $160  to  $400.  In  each  college  certain 
individuals  are  enrolled  irrespective  of  the  property  qualification. 
In  general  they  include  the  high  officials  of  state,  of  the  army  and 
the  courts,  members  of  the  professions,  professors,  and  teachers. 

The  first  college  elects  sixty  senators  and  the  second  fifty. 
Senators  must  be  at  least  forty  years  of  age,  E-umanian  citizens 
enjoying  full  civil  and  political  rights,  domiciled  in  Rumania, 
and  have  an  assured  income  of  about  $1800.  The  property  quali- 
fication is  dispensed  with  in  the  case  of  a  number  of  high  officials. 
The  heir  to  the  throne  has  a  right  to  membership  at  eighteen 
but  no  right  to  vote  until  he  is  twenty-five.  The  term  of  senators 
is  eight  years,  and  one  half  are  elected  every  four  years.  In  case 
of  dissolution  the  entire  Senate  is  renewed. 

The  King  and  the  Ministers.  —  The  constitution  declares 
that  "  the  constitutional  powers  of  the  King  are  hereditary  "  in 
the  House  of  Hohenzollern-Sigmaringen  according  to  the  Salic 
law.  In  the  event  the  throne  becomes  vacant,  choice  of  a  new 
King  devolves  upon  the  two  Houses  sitting  together ;  they  must 
meet  at  once  and  choose  a  successor  within  eight  days.  During 
the  vacancy  the  Houses  united  shall  choose  a  commission  of  three 
who  shall  exercise  the  royal  power  until  a  King  is  chosen.  The 
person  of  the  King  is  inviolable.  The  ministers  are  responsible, 
and  no  act  of  the  King  is  valid  unless  countersigned  by  a  minister 
who  thereby  assumes  responsibility  for  it. 

The  King  appoints  and  dismisses  the  ministers ;  sanctions  and 


THE   GOVERNMENT   OF    RUMANIA.  515 

promulgates  the  laws,  and  may  refuse  his  sanction ;  he  may  issue 
ordinances  to  aid  in  carrying  out  the  laws  but  cannot  suspend 
them ;  he  is  chief  of  the  army  and  he  concludes  treaties,  but  to 
become  binding  they  must  be  approved  by  the  legislative  power. 
He  summons  and  closes  the  sessions  of  the  Houses,  though  the 
Houses  must  meet  annually  on  a  given  date  if  not  previously 
summoned  by  the  King ;  he  may  adjourn  the  Houses,  but  not  for 
longer  than  a  month  and  not  oftener  than  once  in  a  session  with- 
out the  consent  of  the  Houses ;  he  may  dissolve  either  or  both  of 
the  Houses,  but  in  case  of  dissolution,  the  Houses  must  be  con- 
voked within  three  months. 

Ministers  have  the  right  to  appear  in  either  chamber  and  take 
part  in  the  debates  but  can  vote  only  in  the  House  of  which  they 
are  members.  At  least  one  minister  must  be  present  before  the 
Houses  can  deliberate,  and  the  Houses  can  demand  the  presence 
of  ministers.  Every  member  of  both  Houses  has  the  right  to 
interpellate  the  ministers. 

The  judicial  power  is  established  by  law  and  no  commissions 
or  extraordinary  courts  can  be  created  on  any  pretext.  There  is 
a  Court  of  Cassation  established  by  the  constitution  and  inferior 
courts  by  law.  Jury  trials  are  assured  for  criminal  cases  and  for 
political  and  press  offences. 

Finances.  —  The  Budget  is  prepared  annually  by  the 
Chamber  of  Deputies  and  must  be  passed  by  it  and  sanctioned  by 
the  King.  If  the  Budget  is  not  passed  in  time,  the  executive 
power  may  expend  for  the  public  service  in  accordance  with  the 
Budget  of  the  previous  year,  but  no  Budget  can  be  extended  more 
than  a  year  beyond  the  year  for  which  it  was  passed. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Bellesort,  A.,  La  Roumanie  contemporaine,  Paris,  1905. 
Benger,  G.,  Rumania  in  1900.     Translation,  London,  1901. 
Blaramberg,  N.,  Essai  compart  sur  les  institutions  et  les  lois  de  la  Rou- 
manie, Bucharest,  1886. 

Dareste,  F.  R.,  Les  Constitutions  Modernes,  Paris,  3d  ed.,  1910. 
Disown.  C.  G.,  Cursul  de  drept  public  roman,  Bucharest,  2d  ed.,  1909. 
Milh-r,  W.,  The  Balkans,  London,  1896. 
Pointe,  H.  Le,  La  Roumanie  Moderne,  Paris,  1910. 


XVII. 
THE   GOVERNMENT   OF   BULGARIA. 


BY  the  Treaty  of  Berlin  of  1878  Bulgaria  was  severed  from 
the  Turkish  Empire  and  established  as  an  autonomous  and  tribu- 
tary principality  under  the  suzerainty  of  the  Sultan.  During  the 
Russo-Turkish  War  of  1877  the  Russians  took  possession  of  Bul- 
garia and  established  an  imperial  commissioner.  This  commis- 
sioner summoned  an  assembly  composed  of  representatives  in  part 
appointed  by  himself,  in  part  chosen  by  the  people  and  in  part 
by  virtue  of  their  official  positions.  The  assembly  was  composed 
of  233  members  and  met  at  Tirnovo  in  February,  1879,  and  on  the 
16th  of  April  proclaimed  a  constitution.  In  April  of  the  same 
year  the  great  Sobranje  assembled  for  the  choice  of  a  ruler. 
Prince  Alexander  of  Battenberg  was  chosen  and  assumed  the 
direction  of  the  new  principality.  He  regarded  the  constitution 
with  disfavor,  and  following  a  number  of  dissolutions  of  the 
assembly  he  issued  a  proclamation  on  the  27th  of  April,  1881,  in 
which  he  declared  that  he  would  resign  his  throne  unless  extraor- 
dinary power  should  be  conferred  upon  him  for  a  period  of  seven 
years  in  order  to  reform  the  administration  and  to  create  new 
institutions,  particularly  a  Council  of  State  composed  of  Bul- 
garians ;  he  also  demanded  the  cessation  of  the  annual  meeting 
of  the  Sobranje  and  the  extension  of  the  current  budget  to  the 
following  year  with  provision  for  the  summoning  of  a  great 
Sobranje  at  the  end  of  the  seven  years. 

These  conditions  were  accepted  by  the  Sobranje  and  until 
September,  1883,  Alexander  ruled  as  an  absolute  prince ;  it  then 
became  necessary  for  him  to  declare  the  constitution  of  1879 
again  in  operation  but  upon  condition  that  it  should  be  amended 

516 


THE  GOVERNMENT  OF  BULGARIA.          ">  1  7 

by  a  great  Sobranje.  The  revision  of  the  constitution  was  pub- 
lished in  December,  1883.  The  principal  change  was  in  the 
establishment  of  a  second  Chamber  which  should  be  composed  of 
members  in  part  appointed  by  the  Prince,  in  part  elected  by  the 
people,  and  in  part  of  members  attending  by  virtue  of  their 
offices.  This  provision  for  a  second  Chamber  was  never  accepted 
by  the  ordinary  Sobranje  and,  therefore,  never  became  effective. 
For  the  next  ten  ydars  it  could  hardly  be  said  that  the  govern- 
ment of  Bulgaria  was  conducted  in  accordance  with  constitutional 
provisions. 

By  the  Treaty  of  Berlin,  the  province  of  East  Rumelia  was 
constituted  a  separate  principality  under  the  suzerainty  of  the 
Sultan,  but  the  separation  between  Bulgaria  and  East  Rumelia 
was  an  artificial  one  and  was  brought  to  a  close  in  1885  when 
Rumelia  rebelled  against  Turkish  domination,  drove  out  the  gov- 
ernor, and  proclaimed  Alexander  as  Prince.  Rumelia  thereby 
became  a  part  of  Bulgaria. 

In  1893  the  Bulgarian  constitution  was  revised  and  by  the 
revision  it  was  provided  that  there  should  be  a  representative 
chosen  for  every  twenty  thousand  inhabitants.  From  that  time 
on  Bulgaria  may  be  said  to  have  been,  in  form  at  least,  governed 
in  accordance  with  the  constitution.  In  October,  1908,  Prince 
Ferdinand  proclaimed  Bulgaria  an  independent  kingdom  and 
assumed  the  title  of  Czar.  In  October,  1918,  he  abdicated  in 
favor  of  his  son  Boris,  who  likewise  abdicated  within  a  month, 
and  Bulgaria  was  proclaimed  a  republic. 

The  principal  features  of  the  constitution  of  1879  were  the 
existence  of  an  hereditary  prince  in  a  state  called  a  constitutional 
monarchy  with  popular  representation  and  a  popular  assembly. 
The  Prince,  later  the  Czar,  was  the  head  of  the  state ;  his  person 
was  sacred  and  inviolable ;  he  conducted  foreign  affairs  ;  was 
commander-in-chief  of  the  military  forces  in  war  and  in  peace, 
and  he  had  the  right  of  refusing  his  sanction  to  laws  passed  by 
the  popular  assembly. 

The  Sobranje.  —  Popular  representation  existed  in  two 
bodies  :  the  ordinary  Sobranje  and  the  great  Sobranje.  Both  were 
elected  directly  by  the  people  in  accordance  with  the  same  elec- 
tion laws  and  procedure.  The  great  Sobranje  was  composed  of 


518  THE   GOVERNMENT    OF   BULGARIA. 

twice  as  many  members  as  the  ordinary  Sobranje  ;  it  met  only 
on  special  occasions,  which  were  determined  in  the  constitution 
as  follows  :  for  the  consideration  of  the  question  of  the  cession 
or  exchange  of  territory,  for  amendment  or  revision  of  the  con- 
stitution, and  for  the  filling  of  a  vacancy  in  the  succession  to  the 
throne  and  to  receive  the  oath  from  a  new  Prince  when  he 
ascended  the  throne.  The  ordinary  Sobranje  was  elected  for  a 
period  of  four  years  on  the  basis  of  universal  and  direct  suffrage 
and  consisted  of  one  deputy  for  every  twenty  thousand  inhabit- 
ants. It  was  the  legislative  body  of  the  kingdom  and  was  en- 
dowed with  the  ordinary  rights  and  privileges  of  legislative 
bodies.  The  executive  power  was  exercised  by  ministers  ap- 
pointed and  dismissed  by  the  Czar  and  they  were  responsible  by 
counter-signature  for  all  his  acts  ;  also  they  could  be  held  legally 
and  politically  responsible  by  the  Sobranje  which  controlled  the 
executive  by  means  of  the  necessity  for  an  annual  approval  of  the 
budget. 

SOME  REPRESENTATIVE  AUTHORITIES. 

L'Annuaire,  1880,  p.  774  ff.,  and  1894,  p.  682  ff.,  contain  French  transla- 
tion of  the  Constitution  of  1879  and  the  revision  of  1893. 

British  and  Foreign  State  Papers,  vol.  70,  1878-1879,  p.  1303  ff.,  contains 
French  translation  of  the  Constitution  of  1879. 

De  Cauny,  L.,  La  Bulgarie,  d'hier  et  de  demain,  Paris,  1914. 

Forbes,  N.,  The  Balkans,  Oxford,  1915. 

Fox,  F.,  Bulgaria,  London,  1915. 

Murray,  W.  S.,  The  Making  of  the  Balkan  States,  London,  1913. 

Rankin,  R.,  The  Inner  History  of  the  Balkan  War,  London,  1914. 


XVIII. 
THE   GOVERNMENT  OF  GREECE. 


GREECE  was  a  Turkish  province  from  the  latter  part  of  the 
15th  century  until  its  independence  was  achieved  in  the  revolu- 
tion of  1821-1829.  During  the  revolutionary  period  several  con- 
stitutions were  framed  but  they  were  never  put  into  effect.  At 
the  conference  of  London  in  1830  Greece  was  declared  a  kingdom 
and  put  under  the  protection  of  Great  Britain,  France,  and  Russia. 
Prince  Otto  of  Bavaria  was  accepted  by  Greece  as  king  by  the 
treaty  of  1832  and  ascended  the  throne  January  25,  1833.  He 
ruled  for  eleven  years  without  a  constitution  but  assisted  by  a 
council  of  state  which  had,  however,  only  advisory  powers.  Fol- 
lowing a  revolution  in  1843,  a  constituent  assembly  was  sum- 
moned at  Athens  which  adopted  a  constitution  in  February,  1844, 
modeled  on  the  French  constitution  of  1830  and  the  constitution 
of  Belgium. 

King  Otto  was  expelled  in  October,  1862,  and  in  the  following 
year  Prince  George  of  Denmark  was  elected  and  became  King 
George  the  First.  This  election  was  made  under  the  guidance  of 
the  three  protecting  powers.  In  the  following  year  a  general  re- 
vision of  the  constitution  was  undertaken  by  the  national  assem- 
bly which  had  elected  the  new  King,  and  the  constitution  thus 
framed  was  adopted  in  October,  1864.  This  is  the  constitution 
which  is  in  force  at  the  present  time,  it  contains  provisions 
regarding  the  rights  of  Greek  subjects,  the  powers  of  the  state, 
the  King,  the  ministers,  the  legislative  branch,  and  the  judicial 
power. 

Rights  of  Greek  Subjects.  —  The  constitutional  provisions 
touching  the  rights  of  Greek  subjects  provide  for  equality  of  all 

519 


520  THE   GOVERNMENT   OF   GREECE. 

Greeks  before  the  law  and  a  contribution  by  them  without  dis- 
tinction, in  accordance  with  their  wealth,  to  the  expenses  of  the 
state ;  titles  of  nobility  may  neither  be  conferred  nor  recognized  ; 
individual  liberty,  freedom  from  arrest  and  imprisonment  except 
in  pursuance  of  the  forms  of  law,  the  right  of  peaceable  assembly, 
of  association,  and  of  petition  are  established ;  private  domicile 
and  private  property  are  inviolable  and  private  property  may  not 
be  taken  for  public  use  without  payment.  Likewise  there  is  free- 
dom of  speech  and  of  the  press. 

Powers  of  the  State.  —  All  power  emanates  from  the  nation, 
and  can  be  exercised  only  in  the  manner  established  by  the  consti- 
tution. The  legislative  power  is  exercised  jointly  by  the  King  and 
by  the  chamber  (Boule).  Laws  may  be  initiated  either  by  the 
chamber  or  by  the  King,  who  exercises  his  initiative  through  min- 
isters. Proposals  relating  to  increase  of  public  expense  for  the 
establishment  of  pensions,  or  in  general  for  any  individual  inter- 
est, must  be  originated  by  the  chamber.  Authoritative  interpre- 
tation of  the  laws  belongs  to  the  legislative  authority. 

Executive  power  belongs  to  the  King,  who  exercises  it  through 
responsible  ministers  appointed  by  him. 

The  judicial  authority  is  exercised  by  the  courts,  whose  judg- 
ments are  executed  in  the  name  of  the  King. 

The  King.  —  The  King  cannot  be  held  responsible  and  his 
person  is  inviolable.  Eesponsibility  rests  upon  his  ministers,  and 
no  act  of  his  is  valid  unless  countersigned  by  a  competent  minis- 
ter who  thereby  assumes  the  responsibility.  Ministers  are  ap- 
pointed and  dismissed  by  the  King. 

The  King  is  the  supreme  head  of  the  state ;  he  commands  the 
military  and  naval  forces  ;  declares  war ;  makes  treaties  of  peace, 
of  alliance  and  of  commerce ;  he  must  give  information  to  the 
chamber,  with  the  necessary  explanations  concerning  these 
treaties,  as  soon  as  the  safety  of  the  state  permits.  Treaties  of 
commerce  and  other  treaties  containing  provisions  which  require 
the  sanction  of  the  law,  or  which  affect  the  Greeks  individually, 
must  receive  the  consent  of  the  chamber  before  they  become 
binding.  The  King  has  the  power  to  issue  ordinances  necessary 
to  carry  out  the  laws  but  an  ordinance  may  never  suspend  the 
operation  of  a  law. 


THE  GOVERNMENT   OF   GREECE.  521 

Laws  must  be  sanctioned  and  promulgated  by  the  King.  A  bill 
passed  by  the  chamber  which  does  not  receive  the  sanction  of 
the  King  within  a  period  of  two  months  following  the  close  of  a 
session  is  regarded  as  rejected  by  the  King. 

The  King  must  convoke  the  chamber  at  least  once  a  year  in 
ordinary  session  and  he  may  summon  extraordinary  sessions  as 
often  as  he  deems  it  necessary ;  he  opens  and  closes  each  session 
and  has  the  right  to  dissolve  the  chamber,  but  the  ordinance  of 
dissolution,  countersigned  by  the  ministers,  must  contain  a  pro- 
vision for  an  election  within  two  months  and  for  a  re-assembling 
of  the  chamber  within  three  months  ;  the  King  has  the  right  to 
adjourn  or  to  prorogue  a  session  of  the  chamber  but  not  for  a 
period  longer  than  forty  days  nor  more  than  once  in  the  same 
session  without  the  consent  of  the  chamber.  In  the  event  of  a 
vacancy  in  the  succession  to  the  crown  an  assembly  composed  of 
twice  as  many  members  as  the  chamber  chooses  a  King  by  a  vote 
of  a  two-thirds  majority  of  all  the  members. 

Ministers.  —  The  ministers,  appointed  and  dismissed  by 
the  King,  have  free  access  to  the  chamber  and  have  the  right  to 
be  heard  at  any  time  they  choose,  but  they  may  not  vote  unless 
they  are  members.  The  chamber  in  turn  may  require  the  pres- 
ence of  ministers.  The  ministers  may  not  be  relieved  of  their  re- 
sponsibility by  any  written  or  verbal  order  of  the  King ;  they  may 
be  accused  by  the  chamber  and  tried  before  a  special  court. 

Ministerial  political  responsibility  to  the  chamber  is  secured 
by  convention  rather  than  by  law,  though  the  numerous  constitu- 
tional provisions  relating  to  the  relations  between  the  chamber 
and  the  ministers,  combined  with  the  unquestioned  supremacy 
of  the  popular  will,  would  make  any  other  result  out  of  harmony 
with  the  entire  constitutional  arrangements. 

The  Chamber.  —  The  chamber  meets  annually  on  the  first 
of  November  for  a  session  which  may  not^  be  less  than  three 
months  nor  longer  than  six.  It  deliberates  in  public  but  may, 
upon  the  demand  of  ten  members,  decide  by  a  majority  vote  to 
hold  a  secret  session.  No  taxes  may  be  levied  or  collected  unless 
previously  voted  by  the  chamber  and  sanctioned  by  the  King. 
The  naval  and  military  contingents  and  the  budget  must  be 
passed  annually.  Members  of  the  chamber  enjoy  the  ordinary 


522  THE   GOVERNMENT    OF   GREECE. 

immunity  from  arrest  and  freedom  from  responsibility  for  what 
they  may  say  in  the  chamber.  The  number  of  deputies  in  each 
province  is  fixed  at  the  ratio  of  one  to  every  16,000  inhabitants. 
At  present  there  are  332  members  in  the  chamber,  who  are  elected 
for  a  maximum  period  of  four  years.  Qualifications  of  a  deputy 
are  Greek  citizenship,  enjoyment  of  full  civil  and  political  rights 
for  a  period  of  two  years  previous  to  the  election,  at  least  twenty- 
five  years  of  age  and  the  qualifications  of  an  elector.  The  elector- 
ate is  based  upon  universal  manhood  suffrage. 

Council  of  State.  —  By  an  amendment  to  the  constitution 
in  1911  a  council  of  state  was  established  as  a  substitute  for  a 
second  chamber  of  the  legislative  body.  It  has  the  duty  of  ex- 
amining all  proposals  for  laws  and  of  annulling  official  decisions 
and  acts  contrary  to  the  law. 

The  Judicial  Power.  —  Judges  are  appointed  by  the  king 
in  accordance  with  the  law.  There  are  a  supreme  court,  courts  of 
appeal,  and  courts  of  first  instance.  Judges  hold  office  for  life  • 
and  may  not  be  removed  save  by  judicial  sentence.  The  consti- 
tution forbids  the  creation  of  judicial  commissions  and  extraordi- 
nary tribunals.  The  sessions  of  the  court  are  ordinarily  public 
and  the  decisions  must  be  accompanied  by  statement  of  the 
reasons  therefor,  and  must  be  pronounced  in  public. 

The  constitution  contains  a  prohibition  against  a  total  revision, 
but  revisions  that  are  not  fundamental  in  character  may  be  pro- 
posed after  a  lapse  of  ten  years  from  the  promulgation  of  the  con- 
stitution if  the  necessity  arises.  Such  a  revision  must  be  de- 
manded by  the  chamber  in  two  votes  passed  by  two-thirds  ma- 
jority, providing  the  second  vote  is  taken  at  least  one  month  after 
the  first  and  that  the  revision  shall  be  carried  out  by  a  newly 
elected  chamber. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Cassavetti,  D.  J.,  Hellas  and  the  Balkan  Wars,  London,  1914. 
Dareste,  F.  K,  Les  Constitutions  Modernes,  3d  ed.,  Paris,  1910. 
Demombynes,  G.,  Les  Constitutions  Europeennes,  2d  ed.,  Paris,  1883. 
Deschamps,  G.,  La  Grece  d'aujourd'hui,  Paris,  1910. 
Martin,  P.  F.,  Greece  of  the  Twentieth  Century. 

Saripolis,  X.  K.,  Das  Staatsrecht  des  Konigreichs  Griechenland,  Vol.  8 
of  Das  offentliche  Recht  der  Gegenwart. 


XIX. 
THE   GOVERNMENTS   OF   RUSSIA   AND   TURKEY. 


RUSSIA. 

AUTOCRACY  reached  its  highest  development  in  Russia,  where 
the  power  of  the  Czar  was,  until  1906,  unlimited  by  law.  Pre- 
vious to  that  time  certain  fundamental  laws  had  been  issued  but 
they  had  been  issued  by  an  imperial  ukase  and  could  be  with- 
drawn or  modified  at  the  pleasure  of  the  Czar.  Following  the 
war  with  Japan  a  revolution  broke  out  in  1905,  and  in  February, 
1906,  there  appeared  two  imperial  ukases,  by  one  of  which  a 
Council  of  the  Empire  and  by  the  other,  a  Douma,  or  popular 
house,  was  created.  The  Czar,  however,  retained  the  "  supreme 
autocratic  power"  of  all  the  Russias,  though  he  exercised  the 
legislative  power  in  conjunction  with  the  Council  of  the  Empire 
and  the  Douma. 

All  executive  and  administrative  functions  rested  with  the 
Czar ;  he  appointed  and  dismissed  the  ministers ;  he  was  head 
of  the  army  and  navy ;  he  declared  war  and  concluded  peace  and 
made  treaties,  but  all  of  his  acts  must  be  countersigned  by  a 
minister. 

The  Council  of  the  Empire  was  composed  of  members,  partly 
appointed  by  the  Czar  and  partly  elected,  but  the  number  ap- 
pointed could  not  exceed  that  of  the  elected  members.  The  latter 
were  chosen  by  a  variety  of  organizations,  including  the  church, 
the  nobles,  chambers  of  commerce,  the  universities  and  the  zem- 
stvos,  for  a  term  of  nine  years,  one  third  retiring  every  three 
years. 

The  Douma  was  composed  of  442  members  elected  by  the 
people  under  a  complicated  system  of  indirect  election  for  a  term 

523 


r- 

524         THE   GOVERNMENTS    OF    RUSSIA    AND    TURKEY. 

of  five  years,  but  could  be  dissolved  by  the  Czar.  The  Council  of 
the  Empire  and  the  Douma  had  equal  rights  in  the  matter  of 
legislation,  and  each  might  propose  laws  ;  but  the  initiative  of 
all  laws  amending  the  fundamental  laws  rested  with  the  Czar. 
In  the  matter  of  the  Budget,  credits  necessary  for  the  payment 
of  the  public  debt  and  the  other  obligations  contracted  by  the 
government  could  not  be  refused  or  lessened  and  the  expenses  of 
the  ministry  of  the  court  were  not  subject  to  consideration  by 
the  Council  and  the  Douma  unless  they  exceeded  the  Budget  of 
1906. 

In  the  event  the  Budget  was  not  adopted  by  the  beginning  of 
the  budgetary  year,  the  last  Budget  remained  in  force  with  such 
additions  as  were  necessary  by  reason  of  laws  subsequently 
adopted. 

The  Douma  never  acquired  a  position  of  influence  and  control, 
but  survived  until  the  revolution  in  1917.  As  a  result  of  the 
military  disasters  and  scandals,  including  the  betrayal  of  the 
army  to  the  Germans,  the  Czar  was  deposed  in  March,  1917,  and 
a  republic  proclaimed  under  a  provisional  government.  A  con- 
stituent assembly  was  to  be  chosen  to  determine  a  constitution, 
but  before  it  assembled  the  Bolshevik  regime  was  inaugurated.. 
Soldiers  and  Workmen's  Councils  were  established  in  Petrograd 
and  other  places  and  the  radical  Socialist  element  secured  control 
of  the  machinery  of  the  central  government.  Lenine,  as  presi- 
dent of  the  Council,  and  Trotzky,  as  Foreign  Minister,  have  been 
the  controlling  forces  in  what  government  there  has  been. 

A  condition  bordering  on  anarchy  has  existed  for  more  than  a 
year.  The  Ukraine  proclaimed  its  independence  as  a  republic ; 
other  parts  of  the  Empire  broke  away  from  the  central  authorities 
and  proclaimed  republics,  notably  Murman  in  the  north  and 
Siberia,  and  more  recently  an  All-Eussian  government  has  been 
proclaimed  with  the  object  of  reuniting  the  separate  parts. 

The  Lenine-Trotzky  government  made  peace  with  the  Central 
Empires  by  the  Brest-Litovsk  Treaty,  by  which  several  of  the 
western  provinces  passed  under  German  control.  The  United 
States  and  the  Allies  have  from  the  first  taken  the  position  that 
this  treaty  was  secured  by  treachery  and  bad  faith  and  as  victors 
they  have  compelled  the  Central  Powers  to  abandon  it. 


THE   GOVERNMENTS    OF    KUSSIA    AND    TURKEY.         f)--~> 

It  is  not  possible  to  tell  what  the  outcome  in  Russia  will  be, 
but  it  is  not  probable  that  autocracy  will  be  reinstated.  It  is 
equally  unlikely  that  the  Bolsheviki  will  much  longer  retain  the 
power. 

TURKEY. 

The  government  of  Turkey  has  always  been  regarded  as  an  ab- 
solute monarchy  despite  the  fact  that  it  at  times  has  had  the 
form  of  constitutional  arrangements.  In  1856  at  the  Conference 
of  Paris,  following  the  Crimean  War,  Turkey  was  recognized  as 
a  member  of  the  Family  of  Nations  and  it  was  anticipated  that 
internal  reforms  would  be  carried  out,  assuring  equality  before 
the  law,  respect  for  private  property,  liberty  of  religious  beliefs, 
equality  in  taxation,  public  trials  and  the  abolition  of  confiscation 
and  torture,  but  the  promised  reforms  were  not  realized. 

Under  pressure  from  the  European  powers,  Sultan  Abdul 
Hamid  II.  proclaimed  a  constitution  in  1876  providing  for  a 
Senate  whose  members  were  appointed  for  life  and  a  Chamber  of 
Deputies.  The  first  parliament  met  on  the  19th  of  March,  1877, 
but  the  war  with  Russia  of  that  year  led  to  the  indefinite  pro- 
roguing of  that  body  in  1878.  From  that  time  until  1908  the 
constitution  was  a  dead  letter,  but  under  the  influence  of  the 
Young  Turk  party,  which  then  came  into  power,  the  constitution 
of  1876  was  again  proclaimed  and  in  the  following  year  was  re- 
vised. Though  the  Parliament  met  thereafter,  the  government 
remained  autocratic.  No  real  control  was  exercised  by  the 
Chamber  of  Deputies. 


XX. 
THE   GOVERNMENT   OF   JAPAN. 


THE  constitution  of  Japan  was  promulgated  by  the  Emperor 
on  February  11,  1889,  and  in  accordance  with  its  preamble  came 
into  force  with  the  opening  of  the  iirst  session  of  the  Diet  on 
November  29,  1890.  In  an  imperial  rescript  of  October  12,  1881, 
the  Emperor  had  declared  his  intention  of  promulgating  a  con- 
stitution so  soon  as  the  country  was  ready  for  it ;  and  when  it  is 
recalled  that  Japan  was  opened  to  foreigners  only  twenty-one 
years  before  the  constitution  was  promulgated,  some  conception 
may  be  gained  of  the  rapidity  with  which  the  country  had  pro- 
gressed and  some  allowance  be  made  for  the  inexperience  shown 
in  the  early  attempts  at  constitutional  government.  To  under- 
stand the  government  of  Japan  it  must  be  borne  in  mind  that  for 
centuries  the  country  had  been  under  the  rule  of  an  Emperor  in 
whom  was  vested  in  theory  the  supreme  power.  During  several 
centuries,  to  be  sure,  the  Emperors  enjoyed  no  actual  authority, 
the  government  being  in  the  hands  of  the  Shoguns.  Nevertheless 
there  centered  about  the  Emperors  a  feeling  akin  to  religious  awe 
and  reverence,  and  when  the  last  of  the  Shoguns  in  1868  volun- 
tarily gave  back  his  power  into  the  hands  of  the  Emperor,  the 
combination  of  veneration  and  power  made  him  the  most  absolute 
of  rulers.  But  the  Emperor  pursued  an  enlightened  and  liberal 
policy  and  sought  to  adapt  the  Japanese  government  along  with 
the  rest  of  the  national  life  to  Western  models.  Accordingly, 
following  the  rescript  of  1881,  a  commission  was  appointed,  of 
whom  Prince  Ito  was  the  most  conspicuous  member,  to  study  the 
constitutions  of  the  European  countries  and  the  United  States, 
and  to  frame  a  constitution  for  Japan. 

The  effects  of  the  centuries  of  absolutism  and  feudalism  through 
which  Japan  had  passed  could  not  be  thrown  off  in  the  brief 

526 


THE   GOVERNMENT   OF   JAP  A  \  .  527 

space  of  a  generation,  and  the  constitution  must  be  viewed  in  the 
light  of  this  history.  The  remarkable  fact  is  not  that  the  con- 
stitution of  Japan  is  less  liberal  than  tfhe  most  advanced  constitu- 
tions of  the  Western  world,  but  that  a  constitution  should  have 
been  given  at  all  within  so  brief  a  space  of  time. 

When  one  takes  into  consideration  the  steady  progress  toward 
a  greater  liberalism  in  the  government  and  the  equally  steady  de- 
velopment of  democracy  among  the  people,  no  surprise  will  be 
felt  on  finding  that  custom  has  greatly  modified  the  spirit  of  the 
government  if  not  the  letter  of  the  constitution  in  the  twenty- 
nine  years  of  its  existence. 

The  Emperor.  —  It  was  natural  in  view  of  the  history  of 
Japan  that  the  sovereignty  of  the  Empire  should  be  regarded  as 
in  the  Emperor ;  but  the  constitution  provides  that  it  shall  be 
exercised  in  accordance  with  its  provisions.  The  Emperor  is 
proclaimed  sacred  and  inviolable ;  he  exercises  the  legislative 
power  .with  the  consent  of  the  Diet ;  he  sanctions  the  laws  and 
orders  them  promulgated  and  executed;  he  convokes,  opens, 
closes  and  prorogues  the  Diet,  and  he  may  dissolve  the  House  of 
Representatives;  when  the  public  safety  demands,  or  to  avert 
public  calamities,  he  may,  if  the  Diet  is  not  sitting,  issue  im- 
perial ordinances  in  place  of  laws,  but  such  ordinances  must  be 
submitted  to  the  Diet  at  its  next  session  and  if  not  approved  by 
the  Diet,  they  are  invalid  for  the  future.  He  has  also  the  right 
to  issue  ordinances  to  carry  out  the  laws,  to  preserve  the  public 
peace  and  order,  and  to  promote  the  welfare  of  the  people,  but 
these  ordinances  shall  not  in  any  way  alter  the  existing  laws. 

The  Emperor  determines  the  organization  of  the  different 
branches  of  the  administration,  the  salaries  of  all  civil  and  mili- 
tary officers,  and  appoints  and  dismisses  the  same.  He  is  com- 
mander-in-chief  of  the  army  and  navy  and  determines  their 
organization  and  peace  standing ;  he  declares  war,  makes  peace 
and  concludes  treaties  :  he  confers  titles  of  nobility,  rank,  orders, 
and  other  marks  of  honor,  and  has  the  right  to  grant  pardons, 
amnesty,  and  commutation  of  punishments.  This  is  a  formidable 
list  of  powers  and  were  they  exercised  directly  by  the  Emperor 
would  make  him  the  most  powerful  monarch  ruling  to-day,  but 
all  laws,  imperial  ordinances,  and  imperial  rescripts  that  relate  to 


528  THE  GOVERNMENT  OF  JAPAN. 

state  affairs  must  be  countersigned  by  a  minister  of  state.  The 
constitution  provides  that  the  ministers  of  state  shall  give  advice 
to  the  Emperor  and  shall  be  responsible  for  it.  To  whom  they  are 
to  be  responsible  the  constitution  does  not  state  but  the  custom  may 
be  regarded  as  established  that  they  are  responsible  to  the  Diet. 

The  Privy  Council.  —  An  imperial  ordinance  of  1888, 
amended  in  1890,  provided  that  the  Privy  Council  should  consist 
of  a  President,  a  Vice-President,  twenty-five  Councillors,  a  Chief 
Secretary,  and  five  Secretaries.  Among  the  Councillors  are  ex 
officio  the  ministers  of  state  who  form  the  Cabinet.  The  Council 
may  advice  the  Emperor  upon  doubtful  points  relating  to  articles 
of  the  constitution  and  to  laws  and  ordinances  dependent  upon 
the  constitution,  upon  proclamations  of  a  state  of  siege,  certain 
imperial  ordinances,  treaties,  the  organization  of  the  Privy  Coun- 
cil and  other  matters  specially  called  for.  It  may  be  consulted 
in  times  of  political  crises  concerning  the  organization  of  the 
cabinet  and  all  cabinet  measures  may  be  referred  to  it,  either 
before  presentation  to  the  Diet  or  after  acceptance  by  the  Diet. 
It  is  the  highest  body  of  constitutional  advisers  to  the  Emperor 
and  in  this  respect  has  taken  the  place,  in  part,  which  the  Cabinet 
would  naturally  fill.  Those  who  have  been  seeking  to  establish 
complete  parliamentary  government  and  ministerial  responsibility 
to  the  Diet  regard  the  power  of  the  Privy  Council  as  a  usurpa- 
tion and  wish  to  see  it  limited.  The  so-called  Elder-Statesmen, 
the  Genro,  composed  of  the  survivors  of  the  men  who  brought 
about  the  Restoration  of  1868,  are  an  extra-constitutional  body 
which  has  occupied  a  position  of  influence  next  to  the  Emperor 
and  the  Privy  Council.  These  men  have  rendered  great  service 
to  their  country,  but  they  and  their  position  are  not  in  harmony 
with  the  development  of  constitutional  government  and  popular 
institutions.  They  have  been  the  power  behind  the  throne,  who, 
without  official  position,  have  nevertheless  been  called  upon  for 
advice  in  political  crises.  Death  has  already  removed  all  but 
two  or  three  of  them  and  this  anomaly  will  soon  vanish  entirely. 

The  Cabinet.  —  The  Cabinet  as  such  is  not  mentioned  in 
the  constitution,  which  speaks  only  of  Ministers  of  State  who  are 
ten  in  number ;  the  Minister  President  of  State,  the  Ministers  of 
Foreign  Affairs,  of  Home  Affairs,  of  Finance,  of  War,  of  the  Navy, 


THE  GOVERNMENT  OF  JAPAN.  529 

of  Justice,  of  Education,  of  Agriculture  and  Commerce,  of  Com- 
munications. There  is  also  a  Minister  of  the  Imperial  Household, 
but  he  is  not  a  member  of  the  cabinet. 

The  ministers  may  be  members  of  either  House  of  the  Diet  and, 
whether  members  or  not,  have  the  right  to  speak  in  either  House. 

The  earlier  view  and  practice  was  that  the  ministers  were 
responsible  to  the  Emperor  alone,  who  had  the  right  to  appoint 
and  to  dismiss  them  at  pleasure,  but  this  view  has  begun  to  give 
way  before  the  demand  for  the  control  by  the  Diet ;  in  1914  Count 
Okuma  dissolved  the  House  of  Representatives  and  appealed  to 
the  people  in  a  general  election  in  which  he  obtained  a  large 
majority.  Party  government  may  be  regarded  as  an  established 
fact,  but  the  change  from  ministerial  responsibility  to  the  Emperor 
to  responsibility  to  the  Diet  has  not  yet  been  fully  accomplished, 
although  the  tendency  is  in  this  direction  and  the  present  state  of 
affairs  may  be  regarded  as  transitional.  Nowhere  outside  of 
Japan  is  there  an  upper  house,  not  popular  in  character,  which 
has  maintained  it  supremacy  over  the  lower  popular  house ;  and 
it  is  reasonable  to  suppose  that  with  the  further  development  of 
popular  control  of  the  government,  Japan  will  prove  no  exception 
to  the  rule.  For  the  first  time  in  its  history,  a  real  Liberal  party 
is  at  present  in  power  in  Japan  and  further  increase  in  the  power 
of  the  House  of  Representatives  may  be  expected. 

The  Diet.  —  The  Imperial  Diet  is  composed  of  the  House 
of  Peers  and  the  House  of  Representatives.  Though  the  consti- 
tution vests  the  legislative  power  in  the  Emperor  with  the  con- 
sent of  the  Diet,  the  development  of  parliamentary  government 
has  deprived  the  Emperor  of  the  power  formerly  attributed  to 
him  of  vetoing  laws  passed  by  the  Diet. 

Bills  may  be  initiated  by  the  government  and  by  each  of  the 
Houses  and  the  two  Houses  have  the  same  rights  with  respect  to 
all  measures  except  that  the  Budget  must  be  first  laid  before  the 
House  of  Representatives.  The  House  of  Peers,  however,  has 
won  the  right  to  reinsert  in  the  Budget  items  which  have  been 
stricken  out  in  the  House  of  Representatives. 

The  Diet  meets  annually  and  the  session  lasts  three  months, 
but  may  be  prolonged  by  imperial  order.  Extraordinarjr  sessions 
may  be  summoned  by  the  Emperor.  The  deliberations  of  the 


530  THE  GOVERNMENT  OF  JAPAN. 

Houses  are  public,  but  secret  sittings  may  be  held  upon  the  de- 
mand of  the  government  or  upon  resolution  of  the  House.  No 
member  of  either  House  may  be  held  responsible  outside  the 
respective  Houses  for  any  opinion  expressed  or  for  any  vote 
given  in  the  House,  but  for  his  opinions  expressed  in  public 
speeches  or  in  writing  a  member  is  amenable  to  the  general  law. 
Members  are  free  from  arrest  during  the  session  for  all  ordinary 
offences,  not  of  a  flagrant  character  and  not  connected  with  internal 
disorder  or  foreign  trouble,  unless  with  the  consent  of  the  House. 

The  Emperor  appoints  the  President  and  the  Vice-President  of 
the  House  of  Peers  from  among  the  members  for  a  period  of 
seven  years,  and  the  President  and  Vice-President  of  the  House 
of  Representatives  from  among  the  three  candidates  respectively 
elected  by  the  House  for  each  office. 

The  Presidents  of  the  Houses  receive  an  annual  allowance  of 
5000  yen,  the  Vice-Presidents  3000  yen,  while  the  elected  and 
appointed  members  of  the  House  of  Peers  and  the  members  of 
the  House  of  Representatives  receive  2000  yen.1  They  also  re- 
ceive a  certain  allowance  for  travelling  expenses  —  but  members 
who  are  in  the  service  of  the  government  do  not  receive  such 
annual  allowance. 

Sections  and  Committees.  —  Each  House  divides  itself  into 
sections  by  lot  and  the  sections  elect,  from  among  the  members 
of  the  House,  an  equal  number  of  members  to  the  standing  com- 
mittee, which  is  divided  into  branches  according  to  the  require- 
ments of  business.  Special  committees  are  chosen  by  the  House 
for  the  examination  of  particular  matters. 

House  of  Peers.  —  The  constitution  provides  merely  that 
"  the  House  of  Peers  shall,  in  accordance  with  the  ordinance  con- 
cerning the  House  of  Peers,  be  composed  of  the  members  of  the 
Imperial  Family,  of  the  orders  of  nobility,  and  of  those  persons 
who  have  been  nominated  thereto  by  the  Emperor." 

By  the  Imperial  ordinance  of  February  11,  1889,  the  composi- 
tion of  the  House  of  Peers  was  determined  as  follows :  The  mem- 
bers of  the  Imperial  family ;  princes  and  marquises ;  counts, 
viscounts,  and  barons  who  have  been  elected  thereto  by  the  mem- 
bers of  their  respective  orders ;  persons  who  have  been  elected, 

1  A  yen  equals  about  fifty  cents. 


THE  GOVERNMENT  OF  JAPAN.  531 

one  member  for  each  city  and  prefecture,  by  and  from  among  the 
tax  payers  of  the  highest  amount  of  direct  national  taxes  on  land, 
industry  or  trade  therein,  and  who  have  afterwards  been  nomi- 
nated thereto  by  the  Emperor. 

The  members  of  the  Imperial  family  take  their  seats  upon 
attaining  their  majority,  the  princes  and  marquises  at  the  age  of 
twenty-five,  the  members  of  the  orders  of  counts,  viscounts  and 
barons  at  the  age  of  twenty-five ;  the  latter  are  elected  by  the 
orders  for  a  term  of  seven  years,  and  their  number  shall  not 
exceed  one-fifth  of  the  entire  number  of  the  respective  orders. 

The  Emperor  may  appoint  for  life  any  man  thirty  years  of  age  on 
the  ground  of  meritorious  services  to  the  state,  or  for  his  learning. 

One  member  is  elected  in  each  city  and  prefecture  by  and  from 
among  the  fifteen  male  inhabitants  thereof  above  the  age  of 
thirty  who  pay  the  highest  amount  of  direct  national  taxes  on 
land,  industry,  or  trade.  Those  so  chosen  must  be  appointed  by 
the  Emperor  and  serve  for  a  term  of  seven  years.  The  number 
of  members  appointed  by  the  Emperor  for  meritorious  services, 
for  their  learning  and  from  among  the  highest  tax  payers,  shall 
not  exceed  the  number  of  members  having  the  title  of  nobility. 

The  number  of  members  of  the  House  of  Peers  is  variable  and 
at  present  is  374.  The  House  of  Peers  has  been  a  very  conserva- 
tive body.  Having  an  equal  voice  with  the  House  of  Representa- 
tives in  all  legislation  it  has  blocked  progressive  and  radical 
legislation ;  being  secure  of  its  tenure  of  office,  since  it  cannot  be 
dissolved,  it  has  proved  stronger  than  the  House  of  Representa- 
tives. With  the  further  development  of  parliamentary  govern- 
ment and  a  firmer  establishment  of  ministerial  responsibility,  it 
will  be  indeed  strange  if  the  House  of  Representatives  does  not 
become  the  stronger. 

House  of  Representatives.  —  The  only  constitutional  pro- 
vision respecting  the  House  of  Representatives  is  that  it  shall  be 
composed  of  members  elected  by  the  people  according  to  the  pro- 
visions of  the  Law  of  Election. 

Any  male  Japanese  subject  of  thirty  years  of  age  is  eligible  for 
election  except  the  heads  of  noble  families,  men  in  the  active 
service  of  the  army  or  navy  ;  students ;  Shinto  priests,  ministers, 
priests  and  teachers  of  religion  of  all  kinds ;  certain  government 


532  THE  GOVERNMENT  OF  JAPAN. 

officials,  government  contractors,  and  persons  suffering  from  legal 
disabilities. 

Qualifications  for  electors  are  the  age  of  twenty-five,  permanent 
residence  in  the  district  for  not  less  than  one  year  previous  to  the 
date  of  drawing  up  the  electoral  list,  and  payment  of  direct  national 
taxes  to  the  amount  of  not  less  than  ten  yen.  Inasmuch  as  voting  is 
by  secret  ballot  and  the  elector  must  write  the  name  of  the  candidate 
upon  his  ballot,  the  ability  to  write  is  really  a  qualification. 

There  are  at  present  381  members  who  are  chosen  in  electoral 
districts,  but  each  elector  votes  for  one  person  only.  The  term  of 
members  is  four  years  unless  sooner  terminated  by  dissolution  of 
the  House. 

Rights  and  Duties  of  Subjects.  —  Fifteen  articles  of  the 
constitution  deal  with  the  rights  and  duties  of  Japanese  subjects, 
but  in  almost  every  instance  the  rights  are  to  be  enjoyed  subject 
to  the  limits  provided  by  law  —  and  in  many  instances  these  limits 
have  set  very  great  restrictions  from  the  standpoint  of  American 
ideas  of  individual  rights.  The  constitution  in  fact  affords  no 
absolute  guarantees  of  civil  rights  and  liberties.  There  has  been, 
however,  a  constant  and  rapid  extension  of  popular  liberties  through 
legislative  enactment.  The  extension  of  the  suffrage,  greater 
liberty  of  the  press  and  of  speech,  of  public  meeting  and  political 
association  and  reform  of  the  criminal  law  are  evidence  of  the 
growth  of  popular  rights. 

Political  Parties. — When  the  constitution  was  promul- 
gated there  were  no  political  parties  for  there  had  been  no  oppor- 
tunity or  occasion  for  their  development.  The  intervening  period 
has  witnessed  at  least  the  beginning  of  party  organization  and 
for  the  past  ten  years  parties  have  assumed  somewhat  of  the 
position  and  functions  of  parties  in  other  constitutional  states. 
The  development  of  parties  has  gone  hand  in  hand  with  the  es- 
tablishment of  a  system  of  cabinet  responsibility. 

The  weakness  of  Japanese  parties  lies  in  the  fact  that  they 
have  centered  around  individuals  rather  than  principles.  The 
feudal  conception  of  personal  allegiance  has  lingered  on  into  the 
new  era,  but  with  the  passing  away  of  the  generation  that  knew 
the  old  regime  and  the  coming  into  power  of  the  younger  men  the 
character  of  parties  is  becoming  less  personal ;  policies,  not  men, 


THE  GOVERNMENT  OF  JAPAN.  533 

are  forming  the  cohesive  element.  All  of  which  is  but  further 
evidence  of  the  complete  acceptance  by  the  Japanese  of  the 
political  conceptions  and  arrangements  of  the  Western  world. 

The  Judiciary.  —  Justice  is  administered  by  the  courts 
according  to  law  in  the  name  of  the  Emperor.  He  is  the  fountain 
and  source  of  law  and  of  justice.  The  organization  and  jurisdic- 
tion of  the  courts  is  left  entirely  to  the  law.  The  constitution 
affords  protection  to  judges  through  the  provision  that  "  no  judge 
shall  be  deprived  of  his  position,  unless  by  way  of  criminal  sen- 
tence or  disciplinary  punishment,"  and  to  individuals  by  requiring 
that  trials  and  judgments  shall  be  public,  but  this  requirement  may 
be  suspended  by  law  or  by  the  court  if  publicity  might  be  prejudi- 
cial to  peace  and  order  or  to  the  maintenance  of  public  morality. 
Suits  relating  to  rights  alleged  to  have  been  infringed  by 
illegal  measures  of  the  executive  authority  come  before  the  court 
of  Administrative  Litigation  and  not  before  the  ordinary  courts  of 
law.  The  courts  have  no  power  to  interpret  the  constitution  ;  that 
function  belongs  exclusively  to  the  Emperor  who  was  its  author. 

Amendment  of  the  Constitution,  —  In  consonance  with  its 
origin  as  a  gift  from  the  Emperor,  the  power  of  initiating  amend- 
ments rests  with  him  ;  he  must  submit  a  proposed  amendment  to 
the  Diet.  The  amendment  cannot  be  debated  in  either  House  un- 
less two-thirds  of  its  members  are  present  nor  can  an  amendment 
be  passed  by  either  House  unless  approved  by  two-thirds  of  the 
members  present. 

SOME  REPRESENTATIVE  AUTHORITIES. 

Clement,  E.  W.,  Constitutional  Imperialism  in  Japan,  Proceedings  of 
the  Academy  of  Political  Science,  Vol.  VI.,  No.  3,  N.Y.,  1916. 

I  to,  Commentaries  on  the  Constitution  of  Japan,  Tokyo,  1889. 

./v -nfif/Oj  The  Constitutional  Development  of  Japan,  Baltimore,  1891. 

Kawakami,  K.  K.,  The  Political  Ideas  of  Modern  Japan,  Tokyo,  1903. 

McLaren,  Japanese  Government  Documents,  Asiatic  Society  of  Japan, 
Tokyo,  1914. 

Masoaka,  Japan  to  America,  N.Y.,  1914. 

Satoh,  Evolution  of  Political  Parties  in  Japan,  Tokyo,  1914. 

Uyehara,  The  Political  Progress  of  Japan  (1867-1909),  X.Y.,  1910. 


XXI. 

SUMMARY:   CONSTITUTIONAL   AND  ADMINIS- 
TRATIVE  DEVELOPMENTS. 


Continuity  of  Development.  —  From  the  dim  morning 
hours  of  history  until  now,  the  law  of  coherence  and  continuity 
in  political  development  has  suffered  no  serious  breach.  Human 
choice  has  in  all  stages  of  the  great  world-processes  of  politics 
had  its  part  in  the  shaping  of  institutions ;  but  it  has  never  been 
within  its  power  to  proceed  by  leaps  and  bounds :  it  has  been 
confined  to  adaptation,  altogether  shut  out  from  raw  invention. 
Institutions,  like  morals,  like  all  other  forms  of  life  and  conduct, 
have  had  to  wait  upon  the  slow,  the  almost  imperceptible  forma- 
tions of  habit.  The  most  absolute  inonarchs  have  had  to  learn 
the  moods,  observe  the  traditions,  and  respect  the  prejudices  of 
their  subjects ;  the  most  ardent  reformers  have  had  to  learn  that 
too  far  to  outrun  the  more  sluggish  masses  was  to  render  them- 
selves powerless.  Revolution  has  always  been  followed  by  re- 
action, by  a  return  to  even  less  than  the  normal  speed  of  political 
movement.  Political  growth  refuses  to  be  forced ;  and  institu- 
tions have  grown  with  the  slow  growth  of  social  relationships  ; 
have  changed  in  response,  not  to  new  theories,  but  to  new  circum- 
stances. 

The  Order  discoverable  in  Institutional  Development  is 
not,  indeed,  the  order  of  perfect  uniformity :  institutions,  like 
the  races  which  have  developed  them,  have  varied  infinitely  ac- 
cording to  their  environment.  Climate,  war,  geographical  situation, 
have  shaped  them :  the  infinite  play  of  human  thought,  the  infinite 
many-sidedness  of  human  character  have  been  reflected  in  them. 
But  the  great  stages  of  development  have  remained  throughout 

534 


SUMMARY.  535 

clear  and  almost  free  from  considerable  irregularities.  Tested 
by  history's  long  measurements,  the  lines  of  advance  are  seen  to 
be  singularly  straight. 

Course  of  Development  in  the  Ancient  World. — If  the 
bond  of  kinship  was  at  first  clear  and  unmistakable,  it  must  ere 
long  have  become  much  less  defined  in  the  broadened  Family. 
When  the  Family  became  merged  in  the  still  wider  Community, 
solidarity  remained  and  a  strong  sense  of  kinship,  but  the  reality 
of  kinship  had  no  doubt  largely  departed,  and  law  had  begun  to 
take  on  a  public  character,  to  bear  the  sanction  of  all  rather  than 
the  sanction  of  a  single  supreme  person.  Kinship  was  typified 
still  in  the  hereditary  character  of  the  kingship;  but  the  king 
was  now  the  representative  of  the  community  rather  than  its 
master.  The  Community  developed  into  the  city-state:  and 
further  than  this  the  ancient  peoples  did  not  go.  In  Rome  and 
in  the  great  city-states  of  Greece  the  conception  of  citizenship 
supplanted  the  idea  of  kinship.  The  state  became  virtually 
personified  in  the  thought  of  the  time.  It  was  the  centre  of 
civic  affection  and  the  object  of  all  civic  virtue.  The  public 
officer  ruled  not  in  his  own  name  but  in  the  name  of  the  State. 
Around  Rome  at  last  there  grew  up  a  vast  Empire ;  but  it  was 
Rome's  Empire,  —  the  world  had  fallen  into  the  hands  of  a  city, 
and  the  only  citizenship  that  Caracalla  could  bestow  was  the 
citizenship  of  Rome.  This  city-statehood  was  the  last  word  of 
the  ancient  world  in  politics. 

The  Feudal  System  and  the  Modern  Monarch.  —  When 
the  Germans  emerge  upon  the  European  field  we  have  the  State 
in  a  new  aspect.  Nations  are  fmoving  in  arms,  and  the  Host 
is  the  State.  Commanders  of  Hosts  are  the  kings  of  the  new 
order  of  things.  The  Host  settles  on  the  lands  of  the  old  Roman 
dominions,  and  that  military  tenure  is  developed  which  we  have 
learned  to  call  the  Feudal  System.  This  Feudal  System,  when.it 
has  worked  its  perfect  work,  in  such  countries  as  France  and 
Germany,  brings  forth  still  a  third  type  of  kinship :  we  presently 
have  the  king  who  owns  his  kingdom  as  supreme  feudal  lord:  the 
king  who,  having  absorbed  fief  after  fief,  at  last  possesses  his  king- 
dom by  a  perfected  legal  title ;  the  king  whose  realm  is  his  estate. 
This  is  the  king  who  becomes  the  sole  source  of  law  and  of  justice, 


536  SUMMARY. 

the  king  who,  in  our  day,  has  granted  out  of  his  abundant  grace 
rights  and  constitutions  to  his  people. 

England's  Contribution.  —  Where  the  Feudal  System  fails 
of  its  full  fruitage,  as  in  England,  where  freehold  estates  are  not 
entirely  blotted  out,  where  tenure  of  the  king  as  overlord  is  a 
theory  but  never  a  reality,  and  where  local  self-government  obtains 
a  lasting  rootage  in  the  national  habit,  political  development  takes 
another  course.  There  political  liberty  abides  continually,  in  one 
form  or  another,  with  the  people,  and  it  is  their  operative  power 
which  gives  to  liberty  expansion,  and  which  finally  creates  the 
constitutional  state,  the  limited  monarchy,  the  free  self-governing 
nation.  Out  of  the  fief  grew  the  kingdom ;  out  of  the  freehold 
and  local  self-government  grew  the  constitutional  state  ;  out  of 
the  constitutional  state  grew  that  greatest  of  political  develop- 
ments, the  free,  organic,  self-conscious,  self-directing  nation,  with 
its  great  organs  of  popular  representation  and  its  constitutional 
guarantees  of  liberty. 

The  Romans  and  the  English.  —  In  the  general  history  of 
European  development  two  nations  stand  forth  preeminent  for 
their  political  capacity :  the  Roman  nation,  which  welded  the 
whole  ancient  world  together  under  one  great  organic  system  of 
government,  and  which  has  given  to  the  modern  world  the  ground- 
work of  its  systems  of  law;  and  the  English  nation,  which  gave 
birth  to  America,  which  has  "  dotted  over  the  whole  surface  of 
the  globe  with  her  possessions  and  military  posts,"  and  from 
which  all  the  great  nations  of  our  time  have  borrowed  much  of 
their  political  thought  and  more  of  their  political  practice.  And 
what  is  most  noteworthy  is  this,  that  these  two  nations  closely 
resemble  each  other,  not  only  in  the  mental  peculiarities  which 
constitute  the  chief  element  of  their  political  strength,  but  also  in 
the  institutional  foundations  which  they  have  successively  laid 
for  their  political  achievements. 

Likenesses  between  the  Two  Imperial  Nations.  —  Both 
have  been  much  stronger  in  creating  and  working  institutions  than 
in  explaining  them :  both  of  them  have  framed  such  a  philosophy 
as  they  chose  to  entertain  '  after  the  fact ' :  neither  has  been  too 
curious  in  examining  the  causes  of  its  success  or  in  working  out 
logical  sequences  of  practice.  Above  all,  neither  has  suffered  any 


SUMMARY.  537 

taint  of  artificial  thoroughness  to  attach  itself  to  its  political 
methods.  Slowly,  and  without  much  concern  for  theories  of  gov- 
ernment, each  has  made  compromise  its  method,  adaptation  its 
standing  procedure.  Illogical,  unimaginative  their  mode  of  pro- 
cedure must  be  said  to  have  been  throughout,  a  mode  for  slow, 
practical  men,  without  speed  or  boldness.  Revolution  has  never 
fallen  within  their  calculations ;  even  change  they  have  seldom 
consciously  undertaken.  If  old  institutions  must  perish,  they 
must  perish  within  the  Koman  or  English  system  by  decay,  by 
disuse,  not  by  deliberate  destruction :  if  new  institutions  must  be 
constructed,  they  must  be  grafted  on  the  old  in  such  wise  that 
they  may  at  least  seem  to  be  parts  of  the  same  stock,  and  may 
partake  as  largely  as  may  be  of  that  one  vitalizing  sap,  old  cus- 
tom. As  the  Roman  Senate,  from  being  the  chief  motive  power 
of  the  state,  came  at  last  to  exercise  only  such  prerogatives  as  the 
people  and  the  people's  officers  suffered  it  to  retain,  so  the  Eng- 
lish House  of  Lords,  from  being  the  single  coadjutor  of  the  king 
in  legislation,  has  been  reduced  to  a  subordinate  part  which  it 
plays  only  upon  a  sort  of  sufferance,  and  all  without  any  sudden 
or  premeditated  step  of  revolution.  As  the  consular  power  in 
Rome  was  slowly  pared  down  to  be  dealt  out  in  parts  to  plebeian 
officials,  so  has  the  royal  power  in  England  been  piece  by  piece 
transferred  to  the  hands  of  ministers,  the  people's  representatives. 
The  whole  political  method  of  the  two  peoples  is  the  same :  the 
method  of  change  so  gradual,  so  tempered  with  compromise  and 
discretion,  so  retarded  and  moderated  by  persistent  habit  that 
only  under  the  most  extraordinary  pressure  is  it  ever  hastened 
into  actual  revolution. 

Popular  Initiative  in  Rome  and  England.  —  Doubtless 
much  of  this  likeness  of  temperament  and  method  is  due  to  the 
fact  that  both  in  Rome  and  in  England  it  has  been  the  nation,  and 
not  merely  a  small  governing  class,  which  has  been  behind  politi- 
cal change.  The  motive  power  was  popular  initiative :  the  process 
of  change  was  the  labored  process  of  legislation,  the  piece-meal 
construction  which  is  to  be  compounded  out  of  the  general 
thought.  Measures  have  had  in  both  cases  to  be  prepared  for  the 
general  acceptance ;  and  popular  action,  wherever  it  is  the  wont 
for  the  people  to  act,  is  always  conservative  action.  A  king's  law- 


538  SUMMARY. 

making  is  apt  to  be  rapid,  thorough,  consistent ;  but  a  nation's 
law-making,  devised  and  struggled  for  piece  by  piece,  cannot  be. 
The  plebeians  in  Rome  fighting  inch  by  inch  towards  the  privi- 
leges which  they  coveted,  the  people  in  England  making  their 
way  by  long-protracted  efforts  towards  the  control  they  desired 
to  exercise,  have  had  to  advance  with  painful  slowness,  and  to 
be  content  with  one  piece  at  a  time  of  the  power  they  strove 
for. 

Rome's  Change  of  System  under  the  Empire.  —  With  the 
full  establishment  of  imperial  forms  of  government  Home  lost  the 
conservative  habit  of  her  republican  period.  The  methods  of 
the  first  emperor,  indeed,  were  slow  and  cautious  in  the  highest 
degree :  Augustus  avoided  all  show  or  name  of  imperial  power. 
Carefully  regardful  of  republican  sentiment  and  spirit,  which  he 
knew  to  be  not  yet  extinct,  he  simply  accumulated  to  himself  one 
by  one  every  republican  office,  professing  the  while  merely  to 
exercise  for  somewhat  extended  periods,  —  periods  which  steadily 
lengthened  from  terms  of  years  to  tenure  for  life,  —  but  by  free 
gift  of  the  Senate  and  people,  the  old  offices  of  self-government. 
But  later  emperors  were  by  no  means  so  careful  or  so  considerate 
of  popular  prejudices :  their  power  was  open,  bold,  oftentimes 
even  wanton.  And  with  these  changes  in  the  nature  of  the 
government  came  radical  changes  in  political  method :  there 
came  the  wilful  creation  of  new  offices  known  to  no  Roman 
custom,  the  constant  breach  of  old  practices  hallowed  by  imme- 
morial Eoman  habit,  —  the  whole  familiar  process,  in  brief,  of 
arbitrary  power.  What  Rome  gained  thus  in  discipline,  in  mili- 
tary efficiency,  she  lost  in  political  capacity.  For  that  capacity 
so  characteristic  of  the  Romans  and  the  English,  the  capacity 
namely  for  political  organization,  is  beyond  question  inseparably 
connected  with  popular  initiative,  with  national  self-direction, 
with  self-government. 

Fundamental  Contrast  between  English  and  Roman 
Political  Method.  —  The  most  striking  contrast  between  the 
English  and  the  Romans  consists  in  a  vital  and  far-reaching 
difference  in  political  organization.  What  I  have  said  touching 
the  national  action  of  the  two  peoples,  the  slow,  conservative 
concert  of  the  people  as  a  whole  in  the  origination  and  effectua- 


SUMMARY.  539 

tion  of  policy  must  be  understood  in  different  senses  in  the  t\\<> 
cases.  It  was  true  of  the  Romans  only  during  the  period  of 
the  Republic  and  while  the  Roman  people  could  take  a  direct 
part  in  affairs.  The  Teuton  brought  into  force,  particularly  in 
England,  the  principle  of  representation,  that  organization  by 
representative  assemblies  which  enabled  the  people  to  act  over 
wide  areas  through  trusted  men  elected  to  speak  and  act  in 
their  stead,  and  which  thus  enabled  the  organization  of  the 
nation  to  extend  without  loss  of  vitality.  Of  such  methods  the 
Roman  knew  nothing.  Only  the  people  of  the  city  of  Rome  had 
any  part  in  Roman  legislation,  for  the  Roman  had  conceived  of 
no  way  of  acting  by  a  delegation  of  the  law-making  power  on 
the  part  of  the  people.  The  equal  and  concerted  action  of 
widely  diffused  populations  through  the  instrumentality  of 
representation  was  utterly  unknown  to  the  ancient  world.  The 
county  court  with  its  reeve  and  four  selected  men  from  each 
township,  the  parliament  with  its  knights  from  the  shire  and 
its  burgesses  from  the  towns,  instrumentalities  so  familiar  every- 
where now  that  the  world  has  gone  to  school  to  the  English  in 
politics,  were  for  a  long  time  peculiar  to  England  in  their  best 
features.  They  were  the  peculiar  fruit  of  Teutonic  political 
organization  where  that  organization  had  grown  most  apart  from 
the  Roman  influence,  in  England,  not  on  the  Continent,  pene- 
trated as  the  continental  lands  were  everywhere  by  the  Roman 
example.  Rome  had  had  no  similar  means  of  holding  her  vast 
populations  together  in  active  political  cooperation  and  living 
union.  Therefore,  as  her  conquests  spread,  her  system  became 
more  and  more  centralized  and  autocratic.  The  English  could 
hold  populations  together,  however  large  they  might  be,  by 
means  of  representative  assemblies ;  but  the  Roman,  who  knew 
no  method  of  admitting  scattered  peoples  to  a  part  in  the  central 
government,  who  knew  no  popular  assemblies  except  those  in 
which  all  citizens  should  be  actually  present  and  vote,  could 
nold  an  extended  empire  together  only  by  military  force  and 
the  stern  discipline  of  official  subordination. 

The  Development  of  Legislatures.  —  Perhaps  the  most 
distinguishing  feature  of  modern  as  compared  with  ancient 
politics  is  the  difference  between  the  sphere,  the  mode,  and  the 


540  SUMMARY. 

instrumentalities  of  legislation  now,  and  the  character  and 
methods  of  legislation  among  the  classical  nations.  Repre- 
sentative law-making  bodies  are  among  the  common-place  insti- 
tutions of  the  political  world  as  we  know  it:  but  no  such 
assembly  was  ever  dreamed  of  by  any  ancient  politician,  Greek 
or  barbarian.  Every  citizen  either  took  direct  part  in  legislation 
or  took  no  part  in  it  at  all.  Aristotle  believed,  consequently, 
that  no  free  state  could  exist  with  a  wide  territory  or  a  popula- 
tion so  scattered  as  to  be  unable  to  attend  the  assemblies.  But 
what  the  Greeks  and  Romans  did  not  know  at  all  the  Teuton 
seems  to  have  known  almost  from  the  first:  representation  is 
one  of  the  most  matter-of-course  devices  of  his  native  polity, 
and  from  him  the  modern  world  has  received  it. 

Our  early  colonial  history  furnishes  at  least  two  very  curious 
examples  of  a  transition  from  primary  to  representative  assemblies.  The 
earliest  legislature  of  Maryland  was  a  primary  assembly  composed  of  all 
the  freemen  of  the  colony  ;  to  the  next  assembly  some  were  allowed  to 
send  proxies ;  and  before  representation  was  finally  established  there 
appeared  the  singular  anomaly  of  a  body  partly  representative,  partly 
primary,  at  least  one  freeman  insisting  upon  attending  in  person  (Doyle, 
I.,  pp.  287-290).  The  other  example  is  to  be  found  in  the  history  of 
Rhode  Island,  whose  citizens  for  some  time  insisted  upon  meeting  at  New- 
port in  primary  assembly  for  the  purpose  of  electing  the  persons  who  were 
to  represent  them  in  the  colonial  legislature,  thus  as  it  were  jointly  inau- 
gurating the  session,  to  use  Mr.  Foster's  words,  and  then  leaving  the  legis- 
lature uto  run  for  itself  for  the  remainder  of  the  time  "  (W.  E.  Foster, 
Town  Government  in  Rhode  Island,  p.  26). 

The  Powers  of  a  Representative.  —  But  only  very 
modern  times  have  settled  the  theory  of  a  representative's 
power.  The  strong  tendency  among  all  vigorously  political, 
all  self-reliant  self-governing  peoples  has  been  to  reduce  their 
representatives  to  the  position  and  functions  of  mere  delegates, 
bound  to  act,  not  under  the  sole  direction  of  their  own  judg- 
ments, but  upon  instruction  from  their  constituents.  The  better 
thought  of  later  times  has,  however,  declared  for  a  far  different 
view  of  the  representative's  office,  has  claimed  for  the  represent- 
ative the  privilege  of  following  his  own  judgment  upon  public 
questions,  of  acting,  not  as  the  mouthpiece  but  rather  as  the 
fully  empowered  substitute  of  his  constituents. 


SUMMARY.  541 

Scope  of  Modern  Legislation.  —  The  question  is  of  the 
greater  importance  because  of  the  extraordinary  scope  of  legisla- 
tion in  the  modern  state,  and  of  the  extreme  complexity  nowa- 
days attaching  to  all  legislative  questions.  Time  was,  in  the 
infancy  of  national  representative  bodies,  when  the  representa- 
tives of  the  people  were  called  upon  simply  to  give  or  refuse  their 
assent  to  laws  prepared  by  a  king  or  by  a  privileged  class  in  the 
state ;  but  that  time  is  far  passed.  The  modern  representative 
has  to  judge  of  the  gravest  affairs  of  government,  and  has  to 
judge  as  an  originator  of  policies.  It  is  his  duty  to  adjust  every 
weighty  plan,  preside  over  every  important  reform,  provide  for 
every  passing  need  of  the  state.  All  the  motive  power  of  govern- 
ment rests  with  him.  His  task,  therefore,  is  as  complex  as  the 
task  of  governing,  and  the  task  of  governing  is  as  complex  as  is 
the  play  of  economic  and  social  forces  over  which  it  has  to 
preside.  Law-making  now  moves  with  a  freedom,  now  sweeps 
through  a  field  unknown  to  any  ancient  legislator;  it  no  longer 
provides  for  the  simple  needs  of  small  city-states,  but  for  the 
complex  necessities  of  vast  nations,  numbering  their  tens  of 
millions.  If  the  representative  be  a  mere  delegate,  local  inter- 
ests must  clash  and  contend  in  legislation  to  the  destruction  of 
all  unity  and  consistency  in  policy ;  if,  however,  the  representa- 
tive be  not  a  mere  delegate,  but  a  fully  empowered  member  of 
the  central  government,  coherence,  consistency,  and  power  may 
be  given  to  all  national  movements  of  self-direction.1 

The  Making,  Execution,  and  Interpretation  of  Law.  — 
The  question  of  the  place,  character,  and  functions  of  legislation 
is  in  our  days  a  very  different  question  from  any  that  faced  the 
ancient  politician.  The  separation  of  legislative,  judicial,  and 
executive  functions  is  a  quite  modern  development  in  politics, 
and  we  have  questions  to  settle  concerning  the  integration  of 
these  three  functions  which  could  not  have  arisen  in  any  ancient 
state.  In  the  early  days  when  the  family  was  the  state ;  in  the 
later  days  when  the  political  organization,  although  it  had  lost 
the  father's  omnipotent  jurisdiction,  still  rested  upon  the  idea  of 

1  The  introduction  of  the  initiative  and  the  referendum  is  evidence  of 
the  distrust  felt  by  the  people  for  their  representatives,  —  often  not  their 
representative,  but  that  of  special  interests. 


542  SUMMARY. 

kinship ;  and  even  in  still  later  times  when  forms  of  government 
inherited  from  these  primitive  conceptions  still  persisted,  all  the 
functions  of  government  were  vested  in  a  single  individual  or  in 
a  single  body  of  individuals,  in  a  father-king  or  in  an  assembly 
of  elders.  Even  in  highly  developed  free  states  like  Athens  no 
adequate  or  complete  recognition  of  any  essential  difference  in 
the  character  of  the  several  duties  of  the  judge,  the  executive 
officer,  and  the  law-maker  is  discoverable.  It  was  a  very  modern 
conception  that  governmental  functions  ought  to  be  parcelled  out 
according  to  a  careful  classification.  The  ancient  assembly  made 
laws,  elected  officers,  passed  judgment  upon  offenders  against  the 
laws,  and  yet  was  conscious  of  no  incongruity.  It  was  before  the 
day  when  any  one  could  be  shocked  by  such  a  confusion  of  powers. 

Modern  politicians  are,  however,  greatly  shocked  by  such 
confusions  of  function.  They  insist,  as  of  course,  that  every  con- 
stitution shall  separate  the  three  '  departments J  of  government, 
and  that  these  departments  shall  be  in  some  real  sense  inde- 
pendent of  each  other ;  so  that  if  one  go  wrong  the  others  may 
check  it  by  refusing  to  cooperate  with  it.  In  no  enlightened 
modern  system  may  the  legislator  force  the  judge,  or  the  judge 
interfere  with  the  privileges  of  the  legislator,  or  judge  or  legis- 
lator wrongly  control  the  executive  officer. 

Charters  and  Constitutions.  —  This  division  of  powers 
between  distinct  branches  of  government  has  been  greatly  em- 
phasized and  developed  by  the  written  constitutions  so  charac- 
teristic of  modern  political  practice.  These  constitutions  have 
by  no  means  all  had  the  same  history,  and  they  differ  as  widely 
in  character  as  in  origin ;  but  in  every  case  they  give  sharp  defi- 
niteness  to  the  organs  and  methods  of  government  which  illus- 
trate the  most  salient  points  of  modern  political  development. 
Our  own  constitutions,  as  we  have  seen  (page  283),  originated  in 
grants  from  the  English  crown,  for  which  were  substituted,  in 
the  days  following  the  war  for  Independence,  grants  by  the 
people.  Originally  royal,  they  are  now  national  charters :  and 
they  have  been  kept  close  to  the  people,  firmly  based  upon  their 
direct  and  explicit  sanction.  The  constitutions  of  Switzerland 
bear  a  like  character :  proceeding  from  the  people,  they  rest  in 
all  points  upon  the  people's  continuing  free  choice. 


SUMMARY.  543 

In  France,  on  the  contrary,  the  people  have  as  yet 
had  no  direct  part  in  constitution-making.  French  constitu- 
tions have  in  all  cases  been  both  made  and  adopted  by  con- 
stituent assemblies,  at  no  stage  are  the  people  directly  called 
upon  for  their  opinion,  —  not  even  after  the  constitution  has 
been  formulated.  Its  adoption,  like  its  construction,  is  a  matter 
for  the  constituent  assembly  alone :  it  is  given  to  the  people, 
not  accepted  by  them.  The  present  constitution  of  the  Kepub- 
lic  was  even  framed  and  adopted  by  a  convention  which 
could  show  no  indisputable  right  to  act  as  a  constituent 
assembly  (page  148). 

Creation  vs.  Confirmation  of  Liberties  by  Constitution. 
—  This  process,  of  the  gift  of  a  constitution  to  the  people  by 
an  assembly  of  their  own  choice,  may  be  said  to  be  interme- 
diate between  our  own  or  the  Swiss  practice,  on  the  one  hand, 
and  the  practice  of  the  monarchial  states  of  Europe,  on  the 
other,  whose  constitutions  are  the  gift  of  monarchs  to  their 
people.  In  many  cases  they  have  been  forced  from  reluctant 
monarchs,  as  Magna  Charta  was  wrung  by  the  barons  from 
John :  but  whether  created  by  stress  of  revolution,  as  in  so 
many  states  in  1848  (page  445),  or  framed  later  and  more  at 
leisure,  as  in  Prussia  (page  445),  they  have  been  in  the  form 
of  royal  gifts  of  right,  have  not  confirmed  but  created  liberties 
and  privileges. 

Our  own  charters  and  constitutions  have,  on  the  con- 
trary, been  little  more  than  formal  statements  of  rights  and 
immunities  which  had  come  to  belong  to  Englishmen  quite  in- 
dependently of  royal  gift  or  favor.  The  Acts  of  Parliament 
upon  which  the  governments  of  such  modern  English  colonies 
as  Canada  and  Australia  rest  do  scarcely  more,  aside  from 
their  outlining  of  forms  of  government,  than  extend  to  the 
colonists  the  immemorial  privileges  of  Englishmen  in  England. 
And  so  our  own  colonial  charters,  besides  providing  for  gov- 
ernors, courts,  and  legislatures,  simply  granted  the  usual  rights 
of  English  freemen.  Our  constitutions  have  formulated  our 
political  progress,  but  the  progress  came  first.  European  con- 
stitutions, on  the  other  hand,  have  for  the  most  part  created 
the  rights  and  immunities,  as  well  as  the  popular  institutions, 


544  SUMMARY. 

which  they  embody :  they  institute   reform,  instead   of  merely 
confirming  and  crystallizing  it. 

The  Modern  Federal  State :  contrasted  with  Confeder- 
ations. —  In  no  part  of  modern  political  development  have 
written  constitutions  played  a  more  important,  a  more  indis- 
pensable role  than  in  the  definite  expression  of  the  nice  balance 
of  institutions  and  functions  upon  which  the  carefully  adjusted 
organism  of  the  modern  federal  state  depends.  The  federal 
state,  as  we  know  it,  is  a  creation  of  modern  politics.  Ancient 
times  afford  many  instances  of  confederated  states,  but  none 
of  a  federal  state.  The  mere  confederations  of  ancient  and  of 
modern  times,  however  long  preserved,  and  of  however  distin- 
guished history,  were  still  not  states  in  the  proper  sense  of  the 
term.  The  most  prominent  example  of  a  confederation  in  ancient 
times  was  the  celebrated  Achsean  League.  In  modern  times  we 
have  had  the  early  Swiss  confederation,  the  several  German  con- 
federacies, and  our  own  short-lived  Confederation. 

They  were  composed  of  states,  and  their  only  constituent  law 
was  treaty.  They  were  themselves,  as  confederacies,  without 
sovereign  power:  sovereignty  remained  unimpaired  with  their 
component  states.  Their  members  did  not  unite :  they  simply 
agreed,  as  equals,  to  act  in  concert  touching  certain  matters  of 
common  interest. 

The  modern  federal  state,  on  the  contrary,  is  a  single  and  com- 
plete political  personality  among  nations :  it  is  not  a  mere  rela- 
tionship existing  between  separate  states,  but  is  itself  a  State. 
Confederation  and  federal  state  have  this  peculiarity  in  common, 
that  they  are  both  constituted  by  the  association  of  distinct,  inde- 
pendent communities :  but  under  a  confederation  these  com- 
munities practically  remain  distinct  and  independent,  while 
within  a  federal  state  they  are  practically  welded  together  into 
a  single  state,  into  one  nation. 

Under  both  forms,  however,  it  has  proved  possible  to  make  pro- 
vision for  the  association,  upon  the  best  terms  of  mutual  help  and 
support,  of  communities  unlike  in  almost  every  feature  of  local 
life,  and  even  of  communities  diverse  in  race,  without  any  sur- 
render of  their  individuality  or  of  their  freedom  to  develop  each 


SUMMARY.  545 

its  characteristic  life.  Nothing  could  well  be  conceived  more 
flexible  than  a  system  which  can  hold  together  German,  French, 
and  Italian  elements  as  the  Swiss  constitution  does. 

Distinguishing  Marks  of  the  Federal  State.  —  The  federal 
state  has,  as  contrasted  with  a  federation,  these  distinguishing 
features  :  (a)  a  permanent  surrender  on  the  part  of  the  constituent 
communities  of  their  right  to  act  independently  of  each  other  in 
matters  which  touch  the  common  interest,  and  the  consequent 
fusion  of  these  communities,  in  respect  of  these  matters,  into  a 
single  state.  As  regards  other  states  they  have  merged  their 
individuality  into  one  national  whole :  the  lines  which  separate 
them  are  none  of  them  on  the  outside  but  all  on  the  inside,  (b) 
The  federal  state  possesses  a  special  body  of  federal  law  and  a 
special  federal  jurisprudence  in  which  is  expressed  the  national 
authority  of  the  compound  state.  This  is  not  a  law  agreed  to  by 
the  constituent  communities  :  it  is  the  spoken  will  of  the  new 
community,  the  Union,  (c)  There  results  a  new  conception  of 
sovereignty.  The  functions  of  political  authority  are  parcelled 
out.  In  certain  spheres  of  action  the  authorities  of  the  Union  are 
entitled  to  utter  laws  which  are  the  supreme  law  of  the  land ;  in 
other  spheres  of  action  the  constituent  communities  still  act  with 
the  full  autonomy  of  independent  states.  The  one  set  of  authori- 
ties is  sovereign ;  for  it  presides,  and  the  range  of  its  powers  is, 
in  the  last  resort,  determined  by  itself ;  but  the  other  set  of 
authorities  exercises  full  dominion,  though  in  a  narrower  sphere. 
Its  powers  are  independent  and  self-sufficient,  neither  given  nor 
subject  to  be  taken  away  by  the  government  of  the  Union,  origina- 
tive of  rights,  and  exercised  at  will. 

All  modern  federal  states  have  written  constitutions ;  but  a 
written  constitution  is  not  an  essential  characteristic  of  federal- 
ism, it  is  only  a  feature  of  high  convenience ;  such  delicate  co- 
ordinate rights  and  functions  as  are  characteristic  of  federalism 
must  be  carefully  defined  ;  each  set  of  authorities  must  have  its 
definite  commission. 

It  is  not  certain  that  the  federal  state,  as  at  present  established, 
is  not  a  merely  temporary  phenomenon  of  politics.  It  is  plain 
from  the  history  of  modern  federal  states,  —  a  history  as  yet  ex- 


546 


SUMMARY. 


tremely  brief,  —  that  the  strong  tendency  of  such  organization  is 
towards  the  transmutation  of  the  federal  into  a  unitary  state. 
After  union  is  once  firmly  established,  not  in  the  interest  only 
but  also  in  the  affections  of  the  people,  the  drift  would  seem  to  be 
in  all  cases  towards  consolidation. 

Existing  Parallels  and  Contrasts  in  Organization.  —  The 

differences  which  emerge  most  prominently  upon  a  comparison 
of  modern  systems  of  government  are  differences  of  adminis- 
trative organization  chiefly  and  differences  in  the  relationship 
borne  by  Executives  to  Legislatures. 

Administrative  Integration :  Relation  of  Ministers  to  the 
Head  of  the  Executive.  —  One  of  the  chief  points  of  interest 
and  importance  touching  any  system  of  administration  is  the 
relation  which  the  ministers  of  state  bear  to  the  head  of  the 
Executive.  Of  course  much  of  the  consistency  and  success  of 
policy  depends  upon  the  presence  or  absence  of  a  single  guiding 
will :  if  ministers  be  without  real  leadership,  they  are  apt  to  be 
without  energy  or  success  in  policy,  if  not  actually  at  odds  with 
each  other. 

Under  our  own  system  the  heads  of  departments  are 
brought  together  into  at  least  nominal  unity  by  their  common  sub- 
ordination to  the  President.  Although  they  are,  as  we  have  seen 
(page  374),  rather  the  colleagues  than  the  servants  of  the  Presi- 
dent, his  authority  is  yet  always  in  the  last  resort  final  and 
decisive:  the  secretaries  have  had  very  few  powers  conferred 
upon  them  by  Congress  in  the  exercise  of  which  they  are  not 
more  or  less  subject  to  presidential  oversight  and  control.  The 
President  is  in  a  very  real  sense  head  of  the  Executive.  In 
France  and  England,  on  the  contrary,  the  nominal  head  of  the 
Executive  is  not  its  real  head.  Not  the  President  or  the  sov- 
ereign but  the  Prime  Minister  speaks  the  decisive  word  in 
administration  and  in  the  initiation  of  policy,  —  and  the  Prime 
Minister  only  so  far  as  he  can  carry  his  colleagues  with  him. 
The  headship  of  the  President  and  the  sovereign  is  in  large  part 
formal  merely,  being  real  only  in  proportion  to  the  influence 
given  them  by  their  interior  position  as  regards  affairs.  The 
influence  of  the  Prime  Minister  is  the  vital  integrating  force. 


SUMMAKY.  547 

Perhaps  it  is  safe  to  say  that  only  in  Germany,  among  constitu- 
tional states,  has  there  been  an  example  of  a  really  sovereign 
guiding  will  in  administration.  The  Emperor's  own  will  or  that 
of  the  vice-regent  Chancellor  was  the  real  centre  and  source  of 
policy,  and  the  heads  of  department  were  ministers  of  that  will. 
And  there  is  under  such  a  system  an  energy  and  coherence  of 
administrative  action  such  as  no  other  system  can  secure.  The 
grave  objection  to  it  is  the  absorption  of  so  much  vitality  by  the 
head  of  the  state  that  its  outlying  parts,  its  great  constituent 
members,  the  people,  are  apt  to  be  drained  of  their  political 
life. 

Relations  of  the  Administration  as  a  Whole  to  the  Min- 
isters as  a  Body.  —  Scarcely  less  important  from  an  administra- 
tive point  of  view  than  the  relations  of  the  ministers  to  the  head 
of  the  Executive  is  the  relation  of  the  administration  as  a  whole, 
both  central  and  local,  to  the  ministers  as  a  body.  We  have  seen 
(pages  330,  335,  336)  that  in  the  commonwealths  of  our  own 
Union  there  is  in  this  regard  practically  no  administrative 
integration ;  that  the  central  officers  of  administration  do  not  as  a 
rule  constitute  a  controlling  but  only  a  superior  sort  of  clerical 
body.  In  our  federal  organization  we  have  the  President  as 
supreme  chief,  but  the  cabinet  as  a  body  does  not  usually  exercise 
any  concerted  control  over  administration  taken  as  a  whole.  Its 
conferences  as  a  body  are  confined  for  the  most  part  to  political 
questions:  administrative  questions  are  decided  separately,  by 
each  department  for  itself,  the  only  real  central  authority  in 
administrative  matters  being  the  President's  opinion,  not  the 
counsel  of  his  ministers.  As  regards  points  of  administrative 
policy  each  department  is  a  law  unto  itself.  In  England  we  find 
a  slightly  greater  degree  of  administrative  control  exercised  by 
the  Cabinet  as  a  body.  A  "Treasury  minute,"  for  instance,  is 
required  for  any  redivision  of  business  among  the  departments, 
and  such  redivisions  are  presumably  matters  of  agreement  in  Cabi- 
net council.  But  even  in  England  the  administrative  control  of 
the  Cabinet  is  rather  the  result  of  the  political  responsibility 
of  the  Cabinet  than  of  any  conscious  effort  to  integrate  adminis- 
tration by  the  constitution  of  a  body  which  shall  habitually  regu- 
late, by  semi-judicial  processes,  the  main  features  and  when 


548  SUMMARY. 

necessary  even  the  details  of  executive  management.  In  France 
and  Prussia,  on  the  contrary,  such  an  effort  is  made,  and  is  made 
with  effect.  In  France,  besides  a  Cabinet  of  ministers  whose 
function  is  wholly  political,  there  is  a  Council  of  ministers  whose 
single  office  is  systematic  administrative  oversight,  the  harmoniz- 
ing of  methods,  the  proper  distribution  of  business  among  the 
departments,  etc.  (page  158)  ;  and  above  this  Council  of  ministers, 
again,  there  is  a  Council  of  State,  a  judicial  body  whose  part  it  is 
to  accommodate  all  disputes  and  adjust  all  conflicts  of  jurisdic- 
tion between  the  departments,  as  well  as  to  act  as  the  supreme 
administrative  tribunal  (page  173).  In  Prussia  there  was  a  like 
system  :  a  Staatsministerium  which  to  a  certain  extent  combined 
the  duties  given  in  France  to  the  Council  of  Ministers  and  to  the 
Council  of  State,  and  also  a  Council  of  State  which  was  by  de- 
grees being  elevated  to  high  judicial  functions. 

The  Administration  and  the  Legislature.  —  The  relations 
borne  by  the  Administration,  the  branch  which  executes  the  laws, 
to  the  Legislature,  the  branch  which  makes  the  laws,  touch 
the  very  essence  of  a  system  of  government.  Legislation  and 
administration  ought  under  every  well-devised  system  to  go  hand 
in  hand.  Laws  must  receive  test  of  their  wisdom  and  feasibility 
at  the  hands  of  administration :  administration  must  take  its 
energy  and  its  policy  from  legislation.  Without  legislation  ad- 
ministration must  limp,  and  without  administration  legislation 
must  fail  of  effect.  The  vital  connection  between  the  two  is  well 
illustrated  in  the  matter  of  money  appropriations  for  the  support 
of  administration.  Legislators  hold,  and  properly  hold,  the 
purse-strings  of  the  nation :  only  with  their  consent  can  taxes  be 
raised  or  expended.  Without  the  appropriations  for  which  they 
ask,  administrators  cannot  efficiently  perform  the  tasks  imposed 
upon  them  :  but  without  full  explanation  of  the  necessity  for 
granting  the  sums  asked  and  of  the  modes  in  which  it  is  proposed 
to  spend  them  legislators  cannot  in  good  conscience  vote  them. 
A  perfect  understanding  between  Executive  and  Legislature  is, 
therefore,  indispensable,  and  no  such  understanding  can  exist  in 
the  absence  of  relations  of  full  confidence  and  intimacy  between 
the  two  branches. 

The  absence   of  such  a  cooperative  understanding  has 


SUMMARY.  549 

led  in  France  to  the  gravest  financial  impotency  on  the  part  of 
the  government.  The  Chambers  trust  almost  nothing  concerning 
appropriations  to  the  authoritative  suggestion  of  the  ministers. 
The  great  Budget  Committee  (page  162)  not  only  examines  and 
revises  but  also  at  pleasure  annuls  or  utterly  reverses  the  financial 
proposals  of  the  ministers :  the  ministers  are  for  the  most  part 
left  entirely  without  power,  and  therefore  entirely  without  re- 
sponsibility, in  the  matter,  and  appropriations  follow  the  whim 
of  the  Chambers  rather  than  the  necessities  of  administration. 
In  England  the  ministers  are  allowed  to  insist  upon  the  appropri- 
ation of  the  sums  they  ask  for,  because  they  are  held  strictly 
responsible  to  Parliament  for  the  policy  involved  in  every  finan- 
cial proposal.  The  means  of  raising  the  money  desired  Parlia- 
ment is  to  a  certain  extent  at  liberty  to  suggest  without  implying 
distrust  of  the  ministers ;  but  the  amounts  the  ministers  ask  for 
must  be  voted  unless  Parliament  wishes  the  ministers  to  resign. 
Confidence  and  responsibility  go  hand  in  hand  (pages  196,  197). 
Under  our  own  system  there  is  practically  no  commerce  between 
the  heads  of  departments  and  Congress :  the  administration  sends 
in  estimates,  but  the  Appropriations  Committees  of  the  houses 
decide  without  ministerial  interference  the  amounts  to  be 
granted. 

The  relations  existing  between  the  Executive  and  the  Legis- 
lature equally  affect  every  other  question  of  policy,  from  mere 
administrative  questions,  such  as  the  erection  of  new  departments, 
increases  of  clerical  force,  or  the  redistribution  of  departmental 
business,  to  the  gravest  questions  of  commerce,  diplomacy,  and 
war.  The  integration  or  separation  of  the  Executive  and  the 
Legislature  may  be  made  an  interesting  and  important  criterion 
of  the  grade  and  character,  in  this  day  of  representative  institu- 
tions, of  political  organization  in  the  case  of  existing  governments. 
Thus  in  England  we  have  complete  leadership  in  legislation  in- 
trusted to  the  ministers,  and  to  complete  leadership  is  added 
complete  responsibility  (pages  196,  197).  In  France  we  have 
partial  leadership  (financial  matters  being  excluded)  with  entire 
responsibility  (page  160).  In  Prussia,  leadership  without  re- 
sponsibility (pages  460,  461) ;  and  in  Switzerland  the  same 
(page  403).  Under  our  own  system  we  have  isolation  plus  irre- 


550  SUMMARY. 

sponsibility, —  isolation  and  therefore  irresponsibility.  At  this 
point  more  widely  than  at  any  other  our  government  differs  from 
the  other  governments  of  the  world.  Other  Executives  lead  ;  our 
Executive  obeys.1 

1  In  recent  years  the  President  has  steadily  gained  in  his  influence  to 
direct  legislation,  but  it  is  only  through  his  ability  to  act  as  the  spokesman 
of  public  opinion.  So-called  "  administration  measures  "  now  constitute  the 
leading  features  of  the  legislative  programme,  but  the  Executive  still  lacks 
the  true  position  of  leadership. 


XXII. 
AFTER   THE   WAR. 


THE  governments  of  all  the  powers  actively  participating  in 
the  war  have  experienced  important  changes.  Germany,  Austria- 
Hungary  and  Russia  are  in  the  midst  of  revolution ;  in  place  of 
kingdoms  and  empires,  republics  have  been  proclaimed ;  in  place 
of  autocracy,  democracy  has  been  enthroned.  The  governments 
of  the  other  belligerent  countries  have  not  escaped  the  growing 
sense  of  popular  supremacy,  but  have  everywhere  been  brought 
into  closer  contact  with  the  people. 

An  important  result  of  these  changes  will  be  a  greater  unity 
among  the  states  of  the  world ;  competing  forms  of  government, 
with  their  different  ideals,  will,  we  believe,  be  replaced  by  govern- 
ments organized  on  the  common  basis  of  popular  representation 
and  control :  dynastic  rivalries  will  no  longer  vex  the  world  with 
wars  nor  will  it  be  possible  again  for  ambitious  rulers  to  plunge 
the  world  into  warfare  for  the  accomplishment  of  their  personal 
ends.  A  surer  basis  for  peace  has  been  laid  in  the  -common  and 
universal  control  of  governments  by  their  peoples. 

Though  it  be  true  that  democratic  government  will  make  wars 
less  likely,  it  will  not  eliminate  all  causes  of  conflict  between 
nations,  and  if  the  enormous  sacrifices  of  this  war  are  not  to  be 
made  in  vain,  not  merely  must  democracy  triumph  in  the  indi- 
vidual states,  but  in  the  society  of  states  as  well. 

The  development  of  modern  democracy  has  meant  two  things  : 
equality  of  rights  and  the  assurance  of  those  rights  through  popu- 
lar control  of  government.  Within  the  individual  states  special 
privilege  has  steadily  been  replaced  by  equality  of  all  men  before 
the  law,  and  the  right  of  a  few  to  administer  government  as  their 

651 


552  AFTER   THE   WAK. 

private  possession  has  made  way  for  the  conception  that  the 
whole  people  has  the  right  to  direct  government  for  the  welfare 
of  all.  To  put  it  in  another  way,  democracy  may  be  regarded  as 
the  realization  of  human  rights  through  the  agency  of  government 
in  channels  determined  by  the  popular  will. 

In  the  field  of  international  relations  all  states  have  been  re- 
garded theoretically  as  equal ;  this  has  been  the  basis  upon  which 
international  law  has  rested,  yet  outside  the  realm  of  theory  this 
equality  has  been  confronted  by  a  doctrine  of  state  action  directly 
in  conflict  with  it.  The  modern  state  is  a  territorial  state  and  in 
the  realm  of  international  politics  the  possession  or  lack  of  terri- 
tory has  largely  determined  the  influence  and  importance  of  states. 
Consequently  the  acquisition  of  territory  came  to  be  regarded  as 
a  necessity  in  the  expansion  of  national  life.  But  new  territory 
could  be  acquired  only  at  the  expense  of  some  other  power. 
Here  was  a  frequent  source  of  animosities  and  wars.  In  this 
struggle  for  territory  no  small  state  could  successfully  compete, 
but  worse  still  no  small  state  could  feel  itself  safe  from  the 
menace  of  imperialism.  Moreover  every  large  state  was  jealous 
of  the  extension  of  the  power  of  every  other  and  each  bit  of  ter- 
ritory brought  within  the  control  of  one,  excited  both  the  antag- 
onism and  the  greed  of  every  other  whose  relative  position  of 
power  and  influence  was  thereby  affected.  The  logical  result  was 
deep-seated  distrust  and  a  fear  of  being  overreached,  accompanied 
by  standing  armies  and  powerful  navies  on  whose  existence  the 
peace  of  Europe  was  said  to  depend.  Over  against  this  whole 
conception  of  armed  imperialism  there  arose  the  movement  to 
do  away  with  armies  and  navies  and  the  oppressive  tax  burdens 
which  they  uselessly  imposed.  Many  different  motives  animated 
the  people  who  sympathized  with  this  idea ;  some  adhered  to  it 
out  of  antagonism  to  war  as  in  itself  a  brutal  and  unreasonable 
thing ;  some  because  they  desired  to  see  the  expenditures  hitherto 
directed  to  preparation  for  war  diverted  to  improving  the  social 
well-being  of  humanity. 

The  stages  in  the  development  of  this  idea  are  clearly  marked 
by  the  means  which  were  to  replace  war  in  the  settlement  of 
international  difficulties.  Following  the  adjustment  of  the  Ala- 
bama claims  by  arbitration  at  Geneva  in  1871,  this  method  of 


AFTER    THE    WAK.  553 

settlement  was  eagerly  taken  up  and  pressed  upon  the  attention 
of  the  world.  The  First  Hague  Conference  in  1899,  summoned 
to  consider  the  question  of  disarmament  and  heralded  as  a  Peace 
Conference,  was  unable  to  agree  upon  any  measures  whatever 
looking  toward  disarmament,  but  in  behalf  of  peace  it  adopted  a 
plan  providing  a  general  scheme  of  arbitration  and  a  so-called 
permanent  court  of  arbitration  available  for  any  states  desiring 
to  make  use  of  it.  The  establishment  of  the  permanent  court  of 
arbitration  was  received  as  a  great  achievement  and  stimulated 
to  renewed  activity  those  who  looked  upon  arbitration  as  the 
means  by  which  peace  could  be  maintained.  Numerous  arbitra- 
tion treaties  were  concluded  but  as  they  almost  universally 
excluded  questions  touching  national  honor  and  interests,  little 
was  accomplished  by  them. 

Arbitration,  moreover,  did  not  seem  adequate  to  many  who 
were  seeking  a  peaceful  settlement  of  international  disputes  and 
the  judicial  settlement  of  such  disputes  was  advocated  by  indi- 
viduals and  societies.  At  the  Second  Hague  Conference  in  1907 
an  international  prize  court  was  provided  but  due  to  a  failure  to 
agree  upon  the  law  which  this  court  should  enforce,  it  remained  a 
dead  letter.  Finally  in  1914  the  great  European  conflict,  so  long 
anticipated,  became  a  reality  through  the  wanton  aggression  of 
Germany  and  Austria.  The  doctrine  of  imperialism  became  in 
the  hands  of  Germany  a  demand  for  "a  place  in  the  sun,"  a 
demand  for  a  conquest  as  the  right  of  the  strong  over  the  weak, 
as  the  supremacy  of  might  over  right,  and  a  determination  to  ex- 
tend her  boundaries  and  acquire  territory  at  the  expense  of  her 
neighbors  and  in  utter  disregard  of  international  law,  of  right, 
and  of  humanity.  The  sentiment  aroused  in  the  United  States 
by  Germany's  violation  of  the  neutrality  of  Belgium  in  complete 
disregard  of  solemn  treaty  obligations,  the  terrible  atrocities 
committed  by  her  armed  forces  upon  the  civilian  population  of 
Belgium  and  northern  France,  her  defiance  and  disregard  of  neu- 
tral rights,  and  the  menace  of  her  conduct  to  the  existence  of  the 
society  of  states  led  to  the  establishment  of  a  society  for  the  ad- 
vocacy of  a  League  to  Enforce  Peace.  The  fundamental  principle 
of  the  society  was  to  secure  the  establishment  among  the  nations 
of  a  League,  the  members  of  which  would  bind  themselves  to  use 


554  AFTER    THE   WAR. 

economic  pressure  or  military  force  against  any  state  which 
should  go  to  war  without  first  resorting  to  peaceful  means,  in- 
cluding arbitration,  for  the  settlement  of  the  difficulty.  It  was 
the  application  to  the  society  of  nations  of  the  principle  in  force 
in  every  individual  state.  The  law-breaker  who  violates  the 
rights  of  another  finds  the  combined  force  of  the  society  arrayed 
against  him. 

The  success  of  such  a  League  must  depend  upon  the  whole- 
hearted acceptance  by  its  members  of  the  obligations  it  imposes. 
The  small  states  will  find  in  it  a  source  of  protection  that  will 
free  them  from  the  fear  of  aggression  and  conquest  and  their 
acceptance  of  it  may  naturally  be  anticipated ;  but  the  large  and 
powerful  states  will  be  equally  benefited  through  the  prevention 
of  a  repetition  of  another  world-war.  It  will  mean,  however,  a 
certain  limitation  upon  their  freedom  of  action ;  they  must  re- 
nounce any  claim  to  overcome  the  weaker  by  their  superior 
strength,  and  they  must  forego  the  right  in  any  dispute  to  resort 
straightway  to  force ;  they  must  be  prepared  to  use  their  power 
in  behalf  of  the  established  law  though  their  own  rights  be  not 
immediately  endangered.  Secret  treaties  and  alliances  must  be 
forbidden,  and  disarmament  be  brought  about. 

President  Wilson  has  declared  that  the  United  States  can 
never  again  be  a  neutral  in  a  great  European  war.  The  world 
has  become  too  closely  knit  together  for  us  to  pursue  in  the  future 
the  policy  of  isolation. 

The  hope  of  such  a  League  and  the  possibility  of  its  realization 
have  been  immeasurably  advanced  by  the  destruction  of  autoc- 
racy and  the  universal  establishment  of  democracy. 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


RENEWED  BOOKS  ARE  SUBJECT  TO  IMMEDIATE 
RECALL 


\ 


LIBRARY,   UNIVERSITY  OF  CALIFORNIA,  DAVIS 

Book  Slip-50?n-8,'66(G5530s4)458 


,- 


N9   557693 


Wilson,  W. 

The  state;  elements 
of  historical  and 
practical  politics* 


JC11 

W5 

1918 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


